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Forests and Mountains - The Law and Policy of Transforming Conflict to Stewardship.

Forests and Mountains - The Law and Policy of Transforming Conflict to Stewardship.

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  • 1. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Pace University School of Law Peace Parks for Mountain Forests: The Law and Policy of Transforming Conflict to Stewardship By Elaine C. Hsiao Master of Laws Candidate, September 2010 Adviser Professor Nicholas Robinson July 17, 2010 This thesis is written under the guidance of Professor Nicholas Robinsonand submitted in partial fulfillment of the requirements for the Master of Laws in Environmental Law at Pace University School of Law. Page 1 of 233 Copyright ©2010 by Elaine Hsiao
  • 2. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Table of Contents1 The Political Ecology of Peace Parks.....................................................................................................4 1.1 Biomes Divided by Borders........................................................................................................5 1.2 The Need for an Eco-Regional Approach...................................................................................7 1.3 Peace Parks for Transboundary Communities and Ecosystems.................................................8 1.4 Transboundary Peace Parks in Montane Regions of Political Instability or Insecurity...........102 Transboundary Mountain Forest Ecosystems and Mountain Forest Dependent Communities............14 2.1 State of the Worlds Forests......................................................................................................15 2.2 Value of forests.........................................................................................................................22 2.2.1 Direct economic value (timber, non-timber forest products).......................................23 2.2.2 Indirect economic value (ecosystem services).............................................................24 2.3 Holistic forest protection.................................................................................................25 2.4 Mountains and Forests..............................................................................................................26 2.5 Mountain Forest Dependent Peoples........................................................................................33 2.6 Threats to mountain forests and the communities that depend on them...................................37 2.7 Opportunities for Enhancing Stewardship for Humans and Nature in Mountain Forests........413 First Generation Peace Parks: Prologue for the Future.........................................................................45 3.1 Fundamentals of a peace park: definition.................................................................................51 3.2 Objectives and benefits of a peace park...................................................................................55 3.3 Towards a legal framework: case studies.................................................................................61 3.3.1 Waterton-Glacier International Peace Park (Canada/US)............................................63 3.3.1.1 Establishment of Waterton-Glacier International Peace Park..........................65 3.3.1.2 Management of Waterton-Glacier International Peace Park............................67 3.3.2 The Central Albertine Rift Transfrontier Protected Area Network (DRC/Rwanda/Uganda) 70 3.3.2.1 Establishment of The Central Albertine Rift Transfrontier Protected Area Network....74 3.3.2.2 Management of The Central Albertine Rift Transfrontier Protected Area Network......80 3.3.3 Parque Internacional La Amistad (Costa Rica/Panama).............................................83 3.3.3.1 Establishment of Parque Internacional La Amistad.........................................86 3.3.3.2 Management of Parque Internacional La Amistad..........................................874 Toward a Legal Framework for Peace Parks........................................................................................94 4.1 Peace park modalities...............................................................................................................94 4.2 When peace parks are created...................................................................................................95 4.2.1 Peace parks in times of peace.....................................................................................105 4.2.2 Peace parks in times of conflict..................................................................................109 4.2.3 Peace parks in times of post-conflict peacebuilding..................................................112 4.3 Initiating a peace park process................................................................................................115 4.4 Peace park project cycle................................................................................................116 4.5 Proponents of a peace park process...............................................................................119 4.6 Legal Form: The Small Print..................................................................................................125 4.7 Suggested best practice guidelines for designing peace park agreements..............................130 4.8 Stewardship Frameworks..............................................................................................137 4.8.1 Separate management.......................................................................................138 4.8.2 Joint management.............................................................................................139 Page 2 of 233 Copyright ©2010 by Elaine Hsiao
  • 3. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 4.8.3 Multi-stakeholder Collaborative Adaptive Management..................................140 4.9 Introducing patchwork peace parks........................................................................................142 5.1 A Sustainable Approach for Mountain Forest Communities..................................................144 5.1.1 Challenges of centralized mountain forest governance..............................................146 5.1.2 Local collaboration for Environmental Peace, Social Peace and International Peace150 5.1.3 Patching communities through Transboundary Community Conservation Areas (TBCCAs) .............................................................................................................................................152 5.2 Case Study: a patchwork peace park between Honduras and Nicaragua...............................155 5.2.1 Profile of the study area.............................................................................................156 5.2.2 History and regional context......................................................................................157 5.2.3 The ecological, economic and social context.............................................................159 5.2.3.1 Environmental situation in the proposed territory.........................................159 5.2.3.2 Socio-economic situation in the proposed territory.......................................162 5.2.4 Conflict potential as peace potential..........................................................................165 5.2.5 Project cycle to date...................................................................................................167 5.2.6 Modalities for a patchwork peace park by the communities of Choluteca, Estelí and Madriz .............................................................................................................................................173 5.2.6.1 Research Methodology: Identifying critical concerns and a system for community organization...............................................................................................................174 5.2.6.2 Environmental Governance and Stewardship in Honduras and Nicaragua...176 6.2.6.2.1Collaborative community conservation in Honduras.........................176 6.2.6.2.1.1 Social Organization in Honduras..........................................180 6.2.6.2.1.2 Political Organization in Honduras.......................................182 6.2.6.2.2 Collaborative community conservation in Nicaragua.......................186 6.2.6.2.2.1 Social Organization in Nicaragua.........................................189 6.2.6.2.2.2 Political Organization in Nicaragua......................................195 6.3 Legal reconciliation of community-level conservation across the Honduran-Nicaraguan border ......................................................................................................................................................200 6.4 A future of legitimacy?...........................................................................................................204 7.1 Reflections on Transboundary Community Conservation......................................................207 7.1.1 Sustainable development needs participation............................................................208 7.1.2 Developing a process using local and organic resources...........................................214 7.2 The future of peace parks.......................................................................................................223 7.2.1 Ecological peace.........................................................................................................223 7.2.2 Social peace................................................................................................................227 7.2.3 International peace.....................................................................................................229 7.2.4 Outward radiation.......................................................................................................231 Page 3 of 233 Copyright ©2010 by Elaine Hsiao
  • 4. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 I. INTRODUCTION The Political Ecology of Peace Parks“The Earth is one but the world is not.”1- Brundtland Commission in Our Common Future Political borders have been a convenient crutch for dividing human communities across Earthsunitary biosphere. Ossification of principles such as the nation-state and territorial sovereignty, havemade borders the presumed and accepted framework for governing peoples. Although borders havehistoric and political uses, they can complicate conservation efforts seeking to maintain ecologicalintegrity. Many environmental harms are inherently transboundary in nature (e.g., climate change);while others, although more localized (e.g., forest fires), are better confronted from all fronts when theyoccur in frontier regions. Climate change demands that we view borders more flexibly, not just for thehuman migrations that will inevitably occur as islands and low-lying coastal regions succumb to risingsea-levels and shoreline erosion, but also for Earths other species, which will find themselves seekingmore hospitable environments as theirs are altered by changes in natural systems. Borders were meantto be a construct for maintaining social order, but history shows us that they can also serve as a point offriction between peoples. Peace parks provide a land ethic that transcends borders and seeks to stabilize tensions betweenbordering States, honoring the unity of biosphere systems in its efforts to achieve peace, conservationand cooperation. In theory, peace parks recognize that humans and the biosphere are one and thatnatural resources, just as cultural resources, must be collaboratively protected. In the cases of inhabitedborder regions, peace park principles of holistic conservation, cooperation and peace require that localcommunities be incorporated into park management. I posit that this is all the more true for frontiercommunities in regions of conflict, weak governance or political instability. This paper examines legalframeworks for instituting peace parks by local communities themselves, when action on the part oftheir governments is absent or counter-productive. In doing so, I will comparatively analyzetransboundary protected areas in different regions of the world, extracting useful legal mechanisms thatbest reflect peace park principles. I focus this study on transboundary mountain regions because theydemonstrate many valuable attributes, such as forests or watershed tributaries, and are oftentimesinhabited by marginalized communities. Degraded environments and disenfranchised peoples areparticularly vulnerable to conflict2 and border strife (they are difficult to defend or reach), making suchareas particularly interesting for a study on cross-border collaborative conservation.31 World Commission on Environment and Development, Our Common Future 27 (1987).2 Thomas F. Homer-Dixon, Environment, Scarcity, and Violence (1999).3 Lawrence Hamilton & Linda McMillan, Guidelines for Planning and Managing Mountain Protected Areas 20 (IUCN 2004). Page 4 of 233 Copyright ©2010 by Elaine Hsiao
  • 5. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Biomes Divided by Borders Political borders are an anthropological creation that perhaps long ago began as customarilydefined barriers between groups, but today have become fortified lines drawn across geological mapsand codified in many national constitutions.4 Remember back to a time when tribal families negotiatedthe sharing of natural spaces for hunting and gathering, developing ancestral connections to customarylands. With the spawning of agriculture and townships, interests and practices sought to politicizecustomary divides. Landscapes became increasingly fragmented according to individual or propertyinterests, fortifying the chasm between “us” and “them.” In these natal times of modern civilization, itwas desirous to more clearly demarcate such lines and so we find archaeological evidence of the firstfences. Historically, these were simple devices, built with mostly natural materials (typically wood),but these days we see communities pouring billions of dollars (USD) through their governments intomilitarized steel barriers multiple meters high. The world many of us live in today revolves aroundthese very divides; it is the skeleton by which globalization is mechanized. Once a loose customary and political construct, political borders have grown in recognition;they are an assumptively valid basis upon which to structure relations between peoples. The 1648Treaty of Westphalia, which sought to return peace to much of Europe, is said to be the introduction ofa legal codification of the concept of nation-states ruling over sovereign territories with clear borders. 5This model was imposed upon the colonial territories of post-Westphalia European nations, aninfluence that has led to countless border disputes during decolonization and continues to be blamed fortribal conflicts that persist to this day.6 The post-World War II world order has further coalesced this4 E.g., Constitución Política de la Republica de Honduras [Cn.][Constitution], tít. I, ch. II, art. 9, Decreto No. 131, 11 January 1982, as amended by Decreto No. 4, 1990 (Hond.) (El territorio de Honduras está comprendido entre los Océanos Atlántico y Pacífico y las repúblicas de: Guatemala, El Salvador y Nicaragua. Sus límites con estas repúblicas son: 1. Con la República de Guatemala los fijados por la sentencia arbitral emitida en Washington, D.C., Estados Unidos de América, el veintitrés de enero de mil novecientos treinta y tres. 2. Con la República de Nicaragua, los establecidos por la Comisión Mixta de Límites hondureño-nicaragüense en los años de mil novecientos y mil novecientos uno, según descripciones de la primera sección de la línea divisoria, que figura en el acta segunda de doce de junio de mil novecientos y en las posteriores, hasta el Portillo de Teotecacinte y de este lugar hasta el Océano Atlántico conforme al laudo arbitral dictado pro su Majestad el Rey de España, Alfonso XIII, el veintitrés de diciembre de mil novecientos seis cuya validez fue declarada por la Corte Internacional de Justicia en sentencia de dieciocho de noviembre de mil novecientos sesenta. 3. Con la República de El Salvador los establecidos en los Artículos diez y seis y diez y siete del Tratado General de Paz suscrito en Lima, Perú el treinta de octubre de mil novecientos ochenta, cuyos instrumentos de ratificación fueron canjeados en Tegucigalpa, Distrito Central, Honduras, el diez de diciembre de mil novecientos ochenta. En las secciones pendientes de delimitación se estará a lo dispuesto en los artículos aplicables del Tratado de referencia).5 Peace Treaty between the Holy Roman Emperor and the King of France and their respective Allies [hereinafter Treaty of Westphalia], art. LXIV, LXXVI, XCII (territorial sovereignty), art. LXVII, CXVI (jurisdiction within walls and territories, maritime as frontiers); art. CXVII (citizens and inhabitants subject to Right of Sovereignty of their Masters), Oct. 24, 1648, available at http://avalon.law.yale.edu/17th_century/westphal.asp (last visited Oct. 4, 2009).6 See Declaration on the Granting of Independence to Colonial Countries and Peoplees, Dec. 14, 1960, G.A. Res. 1514 Page 5 of 233 Copyright ©2010 by Elaine Hsiao
  • 6. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010concept of nation-states and territorial sovereignty into the very basis upon which a group of peoplesmay legitimately participate in international relations and fora. 7 In accordance with the Charter of theUnited Nations (UN Charter), communities are expected to form nation-states, represented by agovernment with the power to control all of the populations and resources within its territory at theexclusion of others. Groups that have historically failed to fit this model (e.g., nomadic tribes ofWestern Sahara) are encouraged to embrace this paradigm and are offered the support of theinternational community (i.e., the Trusteeship Council of the UN) or neighboring nation-states eager tosubsume them into their regimes (e.g., Native Americans in the United States). Membership in the UN,the institutional manifestation of the post-World War II global nation-state paradigm, which has risenfrom 51 Member States at its inception in 1945 to 192 Member States as of 2006, is evidence that mostof the world is falling in line with this world order. It appears borders are here to stay and their presence is not insignificant. Nation-states that fitneatly into political borders determine the passport to be carried by individuals ordained to be citizenswithin their jurisdiction. This small booklet that fits in your back pocket dictates systems ofgovernance (e.g., democratic or monarchic), rights and obligations of individuals (as determined bysocial contract), social services and access to resources, protections and provisions, etc. Much of this iscodified in the legal system of each nation, rules of which citizens of another nation, even if just a fewfeet across the border, cannot be expected to know. It changes the language in which we are educated,the color of the money in our pocketbooks, and the ease with which we move across land and water.Borders shape our very identity. There may be no discernible change in topography or ecology, but thesocial, political, economic and legal implications to an individual are innumerable and unfortunately,this is not a distinction that other species of Earths biota are immune to. Scientists have divided the planet into fourteen major terrestrial biomes, subdivided into 867ecoregions.8 Biomes are defined as “the worlds major communities, classified according to thepredominant vegetation and characterized by adaptations of organisms to that particular environment.”9Ecoregions are “relatively large units of land containing a distinct assemblage of natural communitiesand species, with boundaries that approximate the original extent of natural communities prior to majorland-use change.”10 With few exceptions, neither biomes nor ecoregions coincide with the boundaries (XV), 15 U.N. GAOR, Supp. (No. 16) 66, U.N. Doc. A/4684 (1961), available at http://www1.umn.edu/humanrts/instree/c1dgiccp.htm (last visited July 15, 2010).; See Myres S. McDougal, International Law, Power and Policy: A Contemporary Perspective, 82 Académie de Droit International, Recueil des Cours 133 (1953), reprinted in Reisman, Arsanjani, Wiessner & Westerman, International Law in Contemporary Perspective 147, 147 (Foundation Press, 2004).; See Western Sahara, Advisory Opinion, 1975 I.C.J. 12 (Oct. 16) (the ICJ attempts to determine the “ownership” of the territory known as the Western Sahara).7 E.g., U.N. Charter art. 1, para. 2 (purpose of Charter to develop friendly relations among nations); U.N. Charter art. 2, para 4 (territorial sovereignty); U.N. Charter art. 3-4 (membership of the UN open to states).8 David M. Olson et al., Terrestrial Ecoregions of the World: A New Map of Life on Earth, 51 BioScience 933, 934 (Nov. 2001).9 N.A. Campbell, Biology (4th ed, 1996).10 David M. Olson et al., supra note 8, at 933. Page 6 of 233 Copyright ©2010 by Elaine Hsiao
  • 7. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010of the 192 States recognized by the United Nations (UN).The Need for an Eco-Regional Approach As people draw lines across Earths surface, the biosphere and all of its living and non-livingcomponents continue to flow through natural systems irreverent of where geopolitical bordersultimately fall. Most of the worlds water resources transcend international boundaries, 11 just as forestsdo not naturally stop on one side of a border. Mobile species move back and forth, sometimes evenmore freely than humans do, granted no physical barrier deters such transgressions. Uninterfered with,this is as Gaia systems are understood to be. This is when some will note that humans are the greatestinterference to Earths systems and why we are now facing multi-front environmental crises, adequateresponse to which is hindered by political borders – invisible or walled.12 The environmental threats facing our planet today are many and they cannot be diffused by anyone nation alone. Anthropogenic environmental change, including human-induced climate change, iscausing forests to disappear rapidly, water resources to dwindle or deteriorate, homologization ofbiodiversity and genetic diversity, widespread land degradation, and has pushed our oceans and marinesystems into a domino effect of irreversible collapse. All of the goodwill and conservation efforts inone country may be rendered completely irrelevant by the lack of such efforts in a neighboring country.We see this paradigmatically in the situation of multi-State rivers, whereby downstream States areinevitably subjected to the impacts of upstream State uses of the same river. In the Colorado River, wesee an example of an upstream State (the U.S.), which has failed to adequately protect a shared waterresource and a downstream State (Mexico) left with a hyper-saline phosphorous laden sludge of a waterresource. No effort on the part of Mexican citizens to conserve and protect that wastewater will returnthem a usable river of quantity and quality to support healthy riparian ecosystems. Natural areas inborder regions are vulnerable to all of the usual environmental changes, but the impacts are oftencompounded by the fact that the territory is governed by different political systems. Borders can also become a source of criminality for transboundary environmental harms.Arising out of jurisdictional complexities and enforcement challenges, we see actors from one countryinvading another to illegally extract natural resources and then disappearing behind territorialboundaries without implications. Such acts of criminality exist small-scale when residents of SanDiego take day trips into Tijuana and catch endangered species of fish protected by both countries andreturn unnoticed to their homes for a pleasurable seafood dinner; or large-scale when internationallogging companies deforest tracts of the Congo basin under logging moratoriums in the DemocraticRepublic of the Congo (DRC) and ship their timber products to consumers all over the world. Similaractivities also take place in the form of dumping or pollution and not just extraction. For example,hazardous wastes or electronic waste are all too often improperly treated or disposed of by NorthAtlantic nations in the so-called “Global South.” In some cases, acts do not become illegal unless an11 C. Sadoff, T. Greiber, M. Smith & G. Bergkamp, Share – Managing Water Across Boundaries 6 (IUCN, 2008).12 E.g., Convention on Biological Diversity, pmbl, June 5, 1992, 1760 U.N.T.S. 79. Page 7 of 233 Copyright ©2010 by Elaine Hsiao
  • 8. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010international borderline is involved, as is the case with the U.S. Lacey Act, which strives to preventtrafficking of protected species, much like the Convention on International Trade in EndangeredSpecies (CITES). Despite the overarching moral imperative to do no harm to our neighbors, bordersare often a source of criminal activity tied directly to our shared natural resources. Borders and a Westphalian approach to territorial sovereignty make enforcement againsttransboundary environmental crimes difficult. Fragmentation of ecosystem management, divided bydiffering management systems and authorities across borders, hinders holistic response andstewardship. Park rangers fighting to stem poaching may find themselves frustrated at borders thatcriminals effectively disappear into, but beyond which they have no authority. Customs officials mayallow passage of the last specimen of blue-throated macaw (Ara glaucogularis) into the hands of awealthy foreign private collector, for failure to distinguish it from a blue and yellow macaw (Araararauna). Lack of communication and cooperation between the exporting and importing nationshinder environmental protection across jurisdictions. Efforts by environmental authorities orenforcement officers to confront such challenges repeatedly face the daunting hurdle of Statesovereignty argued by those gripping on to the vestiges of a top-down power that relies on aWestphalian right to exclude. Communities living on international borders suffer from transboundary environmental harms aswell as lack of enforcement. In Rwanda, a charcoal production ban intended to stem chainsaw loggingfor fuel seems to have provided a market opportunity for charcoal produced in the cross-border Kivuregion of the DRC. For the forest dependent communities in the Kivus, not to mention the millionswho have suffered from on-going violent conflict in the region funded in part by these charcoal sales,the deforestation has been life-threatening. Also of a stifling nature for their cultures and peoples, hasbeen the multiple layers of bureaucracy of different governments that indigenous peoples have beenforced to deal with just to protect sacred sites or traditional uses of natural resources. Border-adjacentforest communities are often so disenfranchised or geophysically distant that it is hard for them to seekassistance or access to justice. In my own interviews with subsistence farmers on the border betweenHonduras and Nicaragua, multiple stories were told of reports made to government officials inTegucigalpa about the persistence of armed loggers on their private properties, with no offer to providerecourse or preventive measures against recurrences. The lack of political will to assist these border communities is destructive. There could be noexample more relevant for demonstrating the catastrophe of such failure than climate change and theinternational communitys current inability to effectively mitigate the environmental changes it hascreated and to manage the effects of its actions. In the face of climate change, we must as a globalcommunity do better – much better. Periphery communities cannot be left to fend for themselves.Peace Parks for Transboundary Communities and Ecosystems Fortunately, as is true of much of the climate change debate, we do not need to look far foranswers. Much of what we need, we already have. For over seventy years, peace parks have served as Page 8 of 233 Copyright ©2010 by Elaine Hsiao
  • 9. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010a model for transboundary conservation that is holistic and cooperative. The theory behind peace parksis based on principles of international and environmental law enshrined in the UN Charter, multilateralenvironmental agreements, regional conventions and national laws. Transposition of these policies andprinciples (e.g., international cooperation, peaceful relations between countries, prevention oftransboundary harms, sustainable development, and the right to a healthy environment) through peaceparks signals compliance with already agreed upon international and environmental obligations andthere are many cases of existing peace parks from which we can learn.13 The term “peace park” is not commonly known or understood by most people, although it hasbeen the subject of conservation and natural resources management dialogue since at least the early1920s.14 Purportedly, the first area to be recommended for transboundary conservation is the TatrasMountains between what was then Czechoslovakia (now the Czech Republic and Slovakia) and Poland.15 The Krakow Protocol called for peace parks as part of a border dispute resolution, but it did not takeeffect until separate national parks were created between 1949 and 1967 in the three countries. 16 Bythis time, Waterton-Glacier International Peace Park, (Waterton-Glacier) the worlds first peace park,had already been declared in 1932 by the governments of the U.S. and Canada to commemorate thetwo nations long-standing friendly relations and to institute cooperative management of their sharednatural resources. Peace parks now exist in every region of the world, with the newest additionannounced May of 2009 in the Gola Forest between Liberia and Sierra Leone, where cooperative forestconservation and a mining moratorium will remind us of the violent conflict fueled by “blooddiamonds” and two nations post-conflict rebuilding towards societies of peace, conservation andsustainable development.17 Transboundary conservation has been proposed by organizations, such as the InternationalUnion for the Conservation of Nature (IUCN), as a progressive approach to strengthen biodiversityconservation, peaceful relations between peoples and as a vehicle for sustainable socio-economic andcultural development.18 As a form of transboundary conservation, peace parks must simultaneouslyseek to to achieve conservation of biodiversity and peace objectives, while maintaining a minimum13 Pablo Flores Velasquez, Pablo Martinez de Anguita, Elaine Hsiao, La Conservación en las Fronteras: El Ciclo de Proyectos Aplicado a la Creación del Parque Binacional “Padre Fabretto” (Fundacion Fabretto, May 2008).14 R.A. Mittermeier, C.F. Kormos, C.F. Mittermeier, P. Robles Gil, T. Sandwith & C. Besançon, Transboundary Conservation: A New Vision for Protected Areas 27-28 (CEMEX-Agrupación Sierra Madre-Conservation International 2005).15 Id. at 28; Ginger Smith & Alvin Rosenbaum, The Case for an Ecotourism Peace Park and Cultural Heritage Corridor in the Korean Demilitarized Zone, in Ecotourism: Management and Assessment 164, 165 (Dimitrios Diamantis ed., 2004); Jim Thorsell & Jeremy Harrison, Parks that Promote Peace: A Global Inventory of Transfrontier Nature Reserves, in Parks on the Borderline: Experience in Transfrontier Conservation 3, 4 (J.W. Thorsell ed., IUCN 1990).16 R.A. Mittermeier et al., supra note 14 at 28.17 Environment News Service, Sierra Leone and Liberia Create Vast Transboundary Peace Park (May 18, 2009), available at http://www.ens-newswire.com/ens/may2009/2009-05-18-01.asp (last visited Oct. 4, 2009).18 R.A. Mittermeier et al., supra note 14 at 27. Page 9 of 233 Copyright ©2010 by Elaine Hsiao
  • 10. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 19level of cooperation (some communication). This description of peace parks is in accordance with theIUCN definitions, which sought to reflect general consensus around the many largely interchangeableterms used to describe such areas (transboundary protected areas for peace and cooperation, parks forpeace, etc.). Reports by the IUCN, UNEP, the Peace Parks Foundation, the University for Peace, theWorld Wildlife Fund (WWF) and others have commented repeatedly on the multifarious benefits oftransboundary peace parks, ranging from political (peace-building to conflict resolution) to ecologicalas well as social (economic and cultural benefits).20Transboundary Peace Parks in Montane Forest Regions of Political Instability or Insecurity It is often in times of crisis that a peace park and its many benefits are most needed, butsomehow the most difficult to achieve. Just as it took decades for the parks in the Czech Republic,Poland and Slovakia to reach fruition because of continued conflict, peace park processes in regions ofpolitical instability, violent conflict or weak governance often struggle to come into being. This couldbe for lack of political will on the part of those politically responsible, for lack of resources (human ormonetary), or because of overwhelming insecurity and institutional failure. Peace parks processesarising post-conflict, such as the European Greenbelt Initiative, which seeks to connect 22transboundary protected areas along the former Iron Curtain between Warsaw Pact countries andWestern Europe, or peace parks created to celebrate long-standing peaceful and friendly relations, suchas Waterton-Glacier International Peace Park, are admirable and very much needed, but if peace parksare to achieve what they set out to do (conservation, non-violence conflict resolution, sustainabledevelopment, peace-building, etc.), the peace park model must be allowed to take hold in places ofinstability and insecurity. It is for all of these reasons that this paper seeks to remind us that in thesetimes of economic, environmental, social and political crises, peace parks are a practicable model thatshould be used to simultaneously confront all of these challenges. An example is the peace park initiative between Honduras and Nicaragua. The idea to create apeace park between Honduras and Nicaragua grew out of research in the mountainous border region ofCholuteca and Madriz, exploring possibilities for sustainable rural development based on mechanismssuch as payments for environmental services or certified forestry and non-timber forest product sales.Support, either locally, nationally, regionally or internationally has been thwarted on two occasions.Once due to peaceful and democratic regime change when the Sandanista National Liberation Front(FSLN) won elections in Nicaragua in 2006. Previously, the government had been controlled by itsprimary opposition party, the Constitutionalist Liberal Party (PLC), so all peace park dialogue initiatedwith officials under that regime had to be renewed with the new FSLN authorities. Since then,agreements between local mayors and a resolution adopted at the 4 th IUCN World ConservationCongress in Barcelona, Spain (2008) have supported efforts in the two countries to formalize a draft19 Id. at 33-34.; T. Sandwith, C. Shine, L. Hamilton & D. Sheppard, Transboundary Protected Areas for Peace and Co- operation 2001, at 3 (Best Practice Protected Area Guidelines Series No. 7, IUCN WCPA, 2001).20 R.A. Mittermeier et al., supra note 14. Page 10 of 233 Copyright ©2010 by Elaine Hsiao
  • 11. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010convention between the Governments to create a transboundary peace park. However, the recentmilitary coup which resulted in the removal of President Zelaya from Honduras in June 2009, has onceagain stalled the peace park process. Zelayas first attempt to cross the border of Nicaragua intoHonduras took place near the proposed peace park territory and represented the ousted Presidents firstvisit to the area (unfortunately, not in the form we had hoped). Mountainous border regions are a special transboundary biome that can benefit greatly from apeace park framework. As mentioned previously, these mountains often house the headwaters ofimportant water resources. It has often been said that the next world war will be fought overinternational waters, but thankfully evidence seems to indicate that governments and peoples havetended to come together in agreements to share their water resources. 21 Mountain ranges are also oftencharacterized by their forest ecosystems. These forests face great threats, such as illegal logging, thatare accentuated by the added dimension of being a border region, wherein the border itself becomes thesource of invasion, escape and laundering of the natural resource. In such a space, when atransboundary protected area is established, a well-defined territory and legal framework exist for thecross-border cooperation needed to confront multidimensional transboundary environmental threats.However, in situations where a transboundary protected area framework does not already exist andpolitical instability or insecurity make it prohibitively difficult to do so, an alternative must be offeredto the local communities who are dependent upon the forests and suffer from political inaction. Thus,this paper looks at the application of peace parks in cross-border montane forests in regions ofinsecurity, whether it be due to violent conflict, weak governance or political instability. In such circumstances, it is appropriate to pursue a “patchwork peace park” approach, wherebylocal officials upon the mandate of the local people invoke their authorities to create municipal parksand then join these parks through agreements between municipalities to share in the management ofthis "patchwork peace park."22 This would be a protected area created by the people and for the people,very different from the traditional national park paradigm wherein a far-away legislature declares aprotected area from which all of its human inhabitants are expelled. If humans and nature are tocoexist harmoniously, we must utilize conservation models that include local communities, not isolatethem (especially when dealing with already-disenfranchised peoples). Communication between localgroups (i.e., neighboring municipalities) with first-hand knowledge of the territory will makecollaborative management of the transboundary protected area more inclusive and strengthencommunity connections to the natural resources that are being protected. People tend to be moreclosely tied to their local parks; they have greater access to these areas and are more willing toparticipate more directly in their stewardship. 23 This goodwill should be capitalized upon, particularly21 Aaron T. Wolf, Annika Kramer, Alexander Carius, & Geoffrey D. Dabelko, Water Can be a Pathway to Peace, Not War, 1 Navigating Peace (Woodrow Wilson International Institute for Scholars, July 2006).22 Municipal parks in this case refers generically to a local conservation area; they should take the location-specific form that is most appropriate. For example, a county park, city park or community-managed forest stand.23 John Crosby, CAE & Helen Rose, Parks and Recreation: The Value Proposition, Parks and Recreation 63 (October 2008), available at http://www.nrpa.org/operatingratio/; Jack Harper, Stephen Foreman & Geoffrey Godbey, The Use Page 11 of 233 Copyright ©2010 by Elaine Hsiao
  • 12. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010when assistance from the outside is lacking. Greater involvement in the management of these naturalspaces can build local capacity for conservation and sustainable livelihoods (e.g., ecotourism),developing the management frameworks from the bottom up by local actors themselves. This allowsfor a de facto functional transboundary peace park to take root and then one day when the politicalclimate is ripe, there can be national or multinational officiation of the territory as a transboundarypeace park. This paper is made up of three principal sections, the first of which attempts to provide generalbackground on the state of transboundary forests, their communities, and their protection. In Chapter I,we begin with a description of the worlds transboundary mountainous forest ecoregions and thecommunities that depend on them. This section includes an overview of the various vulnerabilities andthreats to these ecosystems and their peoples, with a particular focus on illegal logging and climatechange. Chapter I highlights some of the challenges that park administrators face in protectingtransboundary montane forests. It stresses the significance of transboundary forests and mountains andthe need to protect them more effectively and in cooperation with the peoples that depend on them. The second section discusses peace park as a practicable framework for conservation andsustainable development in frontier regions with human inhabitants. Chapter II introducestransboundary peace parks as a model for participatory management that links forests, governments andcommunities across borders in a collective effort to confront transboundary forest conservation issues.The theories behind key elements and principles of a peace park are identified in this chapter. Then, inChapter II is also a comparative examination of three different transboundary peace parks whichprovide insight into past peace park processes and existing management frameworks. An analysis ofthe worlds first peace park, Waterton-Glacier, introduces us to the many challenges that parkadministrators face in transboundary conservation, even in times of peace. The second case studyexplores the Virunga-Bwindi Transfrontier Park (Virunga-Bwindi) between the Democratic Republic ofthe Congo (DRC), Rwanda and Uganda, to highlight the benefits of cross-border communication andcollaborative ranger monitoring in protecting biodiversity and natural resources from the ravages ofarmed conflict. Virunga-Bwindi is also an effort to integrate local communities in park management inan area where they had previously been expelled. The third case study, Parque Internacional LaAmistad between Costa Rica and Panama provides a regional perspective of how border conservationcan be used to build regional peace and security. Occasionally references to specific experiences inother protected areas (e.g., the Adirondacks) will be introduced when beneficial to identifying a legalmechanism useful for implementing peace park principles. Chapter III builds on these three casestudies and describes an emerging legal framework for peace parks. It describes when peace parks arecreated, how peace park processes are initiated and undertaken, as well as legal modalities for peacepark declarations (per national legislation or multinational agreement) and stewardship. Following this, section three laments the failures of centralized environmental governance in and Benefits of Local Government Parks and Recreation Services in Canada and the United States – A Perspective of People with Disabilities (1999). Page 12 of 233 Copyright ©2010 by Elaine Hsiao
  • 13. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010areas of conflict, weak governance or political instability and strives to provide an alternative solution.Chapter IV notes that climate change and its related effects demand that legal frameworks for protectedareas be strengthened, which will require legislative changes. This inevitably triggers a slew ofpolitical and administrative hurdles that are especially debilitating in areas plagued by insecurity orproblematic governance. In response, Chapter VI proposes an alternative based on local initiatives – a“patchwork peace park” of local parks for local peoples. Field research in the proposed peace parkterritory between Honduras and Nicaragua, based out of the United Nations Mandated University forPeace, explores the practicalities of implementing the “patchwork peace park” model and discussesnext steps for advancing the currently stalled peace park process. Remarks in the Conclusion evaluatethe challenges and realities of engaging in transboundary community conservation, with somediscourse on the role of the international community in supporting local efforts to take ownership oftheir natural resources across a shared border in the absence of action on the part of their centralgovernments. Some thoughts on the possibilities and opportunities arising out of the “patchwork peacepark” approach and peace parks worldwide conclude this paper. This leaves us with a workable legal framework with which to approach transboundaryconservation in areas of political instability or insecurity that satisfies the call for a bottom-up approachto environmental protection and sustainable development despite the presence of international borders,typically the mark of jurisdictional limits of nation-states ruled by governments that have consolidatedtheir power through the exclusion of external actors in matters within their territorial sovereignty. Onlywhen conservation begins to know no borders (physically and theoretically) will the world becomewhole again. Page 13 of 233 Copyright ©2010 by Elaine Hsiao
  • 14. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 CHAPTER I Transboundary Mountain Forest Ecosystems and Mountain Forest Dependent Communities“Love the forest. Appreciate the forest. Give thanks that the forest sustains us.”- Herb Hammond, Seeing the Forest Among the Trees (1994) The worlds forests provide lungs for the Earth through photosynthesis and are the home ofwondrous biodiversity, most of which are still undiscovered and some of which may one day save thehuman species from even the most proliferate and cleverest of diseases. Yet, there are few vastexpanses of primary forest left; the loss of which is irreplaceable. In every corner of the world, forestsare under fire, literally and figuratively, directly and indirectly. It is true that forests are from time totime diminished by natural causes, but the reasons behind most significant losses of forest cover areanthropogenic. Sometimes this is done for the alleged benefit of human beings (e.g., expansion ofagricultural production, erasure of enemy cover in wartime, proliferation of the timber industry).However, this claim fails to consider the negative externalities arising from the subsequent damage tonatural processes and ecosystem services which forests sustain and upon which we depend. The same can be said of mountains and yet, mountains tend to be orphaned in the conservationand sustainable development dialogue. Mountains themselves are a constantly changing geologicalphenomenon shaped by forces deep within the Earth. Perhaps the geologic time and scale of suchnatural mountain development make it easier for humans to think of them as stable monolithicstructures rather than fragile ecoregions vulnerable to destruction. Nevertheless, the mountain topremoval that is happening in the Appalachians is proof that our species is capable of not onlydestroying mountain ecosystems, but also of completely leveling the mountains themselves. Aconvenient first step in the demolition of a mountain is the denuding of mountainside vegetation,including mountain forests. Somehow though, this link between forests and mountains has escapedbroad attention. A literature survey quickly reveals a staggering imbalance in mountain literature ascompared to forest literature, with mountains on the losing end. 24 It also reveals a general absence ofinformation on the worlds mountain forests; studies tend to focus on one or the other. As a result,governance of mountain forests is largely fragmented and fails to consider the added complexities thatcharacterize mountain forests. The failures of incoherent mountain forest protection is felt more acutely by some of ourspecies than others. By definition, forest dependent mountain communities rely most directly on thewell-being of forest mountain ecosystems and their resources for livelihood, subsistence anddevelopment. When the relationship between forest community and human community is sointerrelated, interdependent and integrated, ecocide may be equivalent to genocide. Forest dependent24 See Derek Denniston, High Priorities: Conserving Mountain Ecosystems and Cultures 11 (Worldwatch Institute, Paper No. 123, 1995).; See also David Smethurst, Mountain Geography, 90 Geographical Review 35, 35 (2000). Page 14 of 233 Copyright ©2010 by Elaine Hsiao
  • 15. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010mountain communities are not the only ones who feel the effects – most of the world derives someform of benefit from mountain and forest ecosystems. In consideration of the reported decline in forestproductivity and the invaluable benefit of forest and mountain ecosystem services, forests andmountains must be protected simultaneously.State of the Worlds Forests There are many organizations, institutions and groups involved in forest related issues. Someinternational organizations, such as the United Nations Food and Agriculture Organization (FAO) andthe United Nations Environment Programmes World Conservation Monitoring Centre (UNEP-WCMC)undertake to monitor and map the worlds forests, compiling information on its various resources andservices. Some are academic institutions, also involved in studying, monitoring and analyzing theresources and trends around forest issues. Government entities are often mandated with the protection,regulation and monitoring of forests and forest resources found within their jurisdiction. Likewise,civil society often forms forest related interest groups. All of these seek to collect information on someaspect of forests, to bring awareness to particular forests issues and perhaps even to change policies orpractices related to forest governance. Below is a selective sampling of some of the major institutionsand organizations involved in growing our understanding of the worlds forests. Box 1.1 Forest Oversight: Who Monitors the Worlds Forests?Below is a selective summary of the main organizations and institutions involved in the monitoring and governance of theworlds forests. Organization What they do Website International OrganizationsUnited Nations Food and Agriculture Publishes Global Forest Resources http://www.fao.org/forestry/en/Organization (FAO) Assessment (every 5 years) Publishes State of the Worlds Forests (every 2 years)United Nations Environment Offers information, analysis and http://www.unep-Programme (UNEP) World capacity building for the conservation, wcmc.org/forest/homepage.htmConservation Monitoring Centre protection and restoration of the worlds(WCMC) forests and their biodiversityInternational Tropical Timber Intergovernmental organization http://www.itto.int/Organization (ITTO) promoting the conservation and sustainable management, use and trade of tropical forest resourcesSecretariat of the Convention on Promotes conservation, sustainable use https://www.cbd.int/forest/Biological Diversity (CBD) and benefit-sharing of forest biological diversity Page 15 of 233 Copyright ©2010 by Elaine Hsiao
  • 16. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 Characterize, analyze and improve global forest classification system, assessment methods, understanding of ecosystem functioning, data and information managementUnited Nations Forum on Forests Facilitates international cooperation and http://www.un.org/esa/forests/(UNFF) policy on sustainable forest managementIntergovernmental Panel on Climate Reports on the impacts of climate http://www.ipcc.ch/Change (IPCC) of the United Nations change to forests and the role of forests,Framework Convention on Climate forest degradation and deforestation inChange (UNFCCC) climate changeUnited Nations Educational, Scientific Research, conservation and training for http://portal.unesco.org/science/en/ev.phand Cultural Organization sustainable resources management of p-(UNESCO) tropical forests URL_ID=6423&URL_DO=DO_TOPIC &URL_SECTION=201.htmlInternational Union for the Influence, encourage and assist societies http://www.iucn.org/about/work/programConservation of Nature (IUCN) to conserve forest biological diversity mes/forest/ and landscapes through thematic programs in forest law and governance, landscape restoration, poverty reduction, climate change, resources and markets, and securing rights to forest resources National Forest MinistriesUnited States Forest Services (USFS) Manages public lands in national forests http://www.fs.fed.us/ and grasslandsCanadian Forest Service (CFS) Promotes the sustainable development of http://cfs.nrcan.gc.ca Canadas forests and the competitiveness of the Canadian forest sectorUganda National Forestry Authority Manages Central Forest Reserves and http://www.nfa.org.ug/(NFA) supplies forestry-related products and services to government, local communities and the private sectorRwanda Ministry of Lands Formulates policy and law relating to http://www.minerena.gov.rw/Environment, Forestry, Water and protection of the Environment and http://www.minela.gov.rw/Mines (MINERENA) LandsDemocratic Republic of Congo Responsible for the sustainable http://www.mecnt.cd/Ministry of Environment, Nature management of forests in accordanceConservation and Tourism with the lawAdministración Forestal de Estado - Management and regulation of http://www.cohdefor.hn/Corporación Hondureña de Honduran forests and natural resources Page 16 of 233 Copyright ©2010 by Elaine Hsiao
  • 17. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010Desarrollo Forestal (AFE-COHDEFOR) (State ForestryAdministration – HonduranCorporation of ForestryDevelopment)Nicaragua Ministerio del Ambiente y Management and conservation of http://www.marena.gob.ni/Recursos Naturales (MARENA) protected areas and natural resources(Ministry of the Environment andNatural Resources)Costa Rica Ministerio de Ambiente, Management, conservation and http://www.minae.go.cr/Energía y Telecomunicaciones sustainable development of(MINAET) (Ministry of the environmental goods, services, andEnvironment, Energy and natural resourcesTelecommunications) Research InstitutionsInternational Forestry Resources and Examines how governance arrangements http://sitemaker.umich.edu/ifri/hoInstitutions (IFRI) affect forests and the people who depend me on themCenter for International Forestry Researches governance, poverty and http://www.cifor.cgiar.org/Research (CIFOR) environmental issues to shape policy and improve the management and use of forests in less-developed countriesWorld Resources Institute (WRI) Forest Landscapes Initiative seeks to http://www.wri.org/ protect intact forest landscapes, manage http://www.wri.org/project/global-forest- working forests more effectively, and watch restore deforested lands by influencing policies and building capacity Global Forest Watch monitors and maps forestsChatham House Energy, Environment Promotes control of illegal http://www.chathamhouse.org.uk/researcand Development Programme (EEDP) logging and international trade in h/eedp/ illegally logged timberRights and Resources Initiative (RRI) Research and development to support http://www.rightsandresources.org/ pro-poor forest tenure, policy and market reformsInternational Union of Forest Promotes global cooperation in forest- http://www.iufro.org/Research Organizations (IUFRO) related research and enhances the understanding of the ecological, economic and social aspects of forests and trees Page 17 of 233 Copyright ©2010 by Elaine Hsiao
  • 18. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010Yale School of Forestry and Promotes dialogue among businesses, http://research.yale.edu/gisf/tfd/Environmental Sciences – Forest social and environmental groups, andDialogue private forest owners on key forest management issuesInternational Institute of Sustainable Produced a report based on regional http://www.iisd.org/wcfsd/Development (IISD) World hearings conducted according toCommission on Forest Sustainable Brundtland Commission lines toDevelopment (WCFSD) increase awareness of forest issues, broaden consensus on data, science and policy aspects of forestry conservation and management, and seek policy reforms Non-governmental Organizations (NGOs)Rainforest Alliance TREES program focuses on (TR)aining, http://www.rainforest-alliance.org (E)xtension, (E)nterprises and (S)ourcing activities for sustainable harvesting and production of forest products Smartwood certification and Verification (e.g., Forest Stewardship Council, FSC)The Nature Conservancy (TNC) Works to protect core forest reserves and http://www.nature.org/initiatives/forests/ to ensure the responsible management of “working forests” by combating illegal logging; promoting sustainable forest trade; securing conservation financing; protecting, restoring and managing forests; and advocating supportive policiesGreenpeace Acts to change attitudes and behavior http://www.greenpeace.org/international/ and to promote peace by protecting and campaigns/forests conserving the worlds ancient forestsForest Peoples Programme (FPP) Supports forest peoples to secure and http://www.forestpeoples.org/ sustainably manage their forests, lands and livelihoodsConservation International (CI) Protect forests to save species and as a http://www.conservation.org/learn/climat first response to climate change e/forests/Pages/overview.aspxEnvironmental Investigation Agency Provides information on forest crimes http://www.eia-international.org/(EIA) Page 18 of 233 Copyright ©2010 by Elaine Hsiao
  • 19. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 Figure 1.1: Terrestrial Biomes of the World25 Forests compose some of the major terrestrial biomes of the world. In Forests Forever, JohnBerger defines a forest as “a totality of interdependent organisms and their interrelationships, alongwith the places where they exist, the physical structures that support them, and the chemicalcompounds they use and exchange.”26 A forest may be identified by its most prevalent arborary species(e.g., pine-oak forest), but Berger is careful to note that a forest is a plexus, made up of so much morethan just an aggregation of trees.27 It is constituted of complex ecosystems that include the relationsbetween “soil, insects and other invertebrates, birds, mammals, amphibians, reptiles, herbs, grass,shrubs, mosses, lichens, bacteria, fungi, and viruses,” as well as all of the abiological components(gases, winds, minerals, etc.) that are inextricably linked to each of these biological components. 28Forests grow, they respire, they transform energy and affect climates, and from our beginnings theirevolution has been intertwined with ours.2925 Nicholas Short, Vegetation Applications - Agriculture, Forestry, and Ecology, in Remote Sensing Tutorial (NASA Reference Publication 1078, 1982), available at http://rst.gsfc.nasa.gov/.26 John Berger, Forests Forever: Their Ecology, Restoration, and Protection 11 (2008).27 Id. at 12.28 Id.29 A study by anthropologist Stanley Ambrose indicates that the first bipedal hominids lived in wooded areas when they evolved to walk on two legs. ScienceDaily, Early Hominid First Walked on Two Legs in the Woods (Oct. 8, 2009), http://www.sciencedaily.com/releases/2009/10/091008113341.htm#. Page 19 of 233 Copyright ©2010 by Elaine Hsiao
  • 20. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 Figure 1.2: The Worlds Forests30 Forests of various types cover nearly one-third (30.3%) of terrestrial land-mass 31 and providehabitat for two-thirds of all terrestrial species, but these numbers are diminishing. 32 The most recentGlobal Forest Resources Assessment (GFRA 2005) published by the Food and AgricultureOrganization of the United Nations (FAO) reveals that there is less than four billion hectares of foreston this Earth.33 This means that we have more than decimated the planets forests (removing one forevery ten) and in fact, have nearly halved them in size.34 Essentially, the human species is deforestingapproximately 13 million hectares a year 35 (or an area the size of a U.S. professional football field30 Food and Agriculture Organization of the United Nations [FAO], Global Forest Resources Assessment: Progress Towards Sustainable Forest Management 2005, at 15 (2006) [hereinafter 2005 Global Forest Resources Assessment], available at http://www.fao.org/forestry/fra/fra2005/en/.31 Id. at 12.32 FAO, State of the Worlds Forests 2005, at 77 (2006) [hereinafter 2005 State of the Worlds Forests], available at http://www.fao.org/forestry/site/fra2005/en (last visited Oct. 17, 2009).33 Id. at 12, 115.34 Dirk Bryant, Daniel Nielson & Laura Tangley, The Last Frontier Forests: Ecosystems and Economies on the Edge 2 (World Resources Institute, 1997), available at http://www.wri.org/publication/last-frontier-forests (last visited Oct. 17 2009).35 2005 Global Forest Resources Assessment, supra note 29, at 13. Page 20 of 233 Copyright ©2010 by Elaine Hsiao
  • 21. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 36every second) and there is little to indicate that this rate is slowing. It might be slightly encouragingto know that some deforestation is offset in part through afforestation and restoration efforts, makingnet forest loss approximately 7.3 million hectares a year (more or less an area the size of Panama orSierra Leone).37 The loss of the primary forests that make up more than one-third of currently existing forests(36%) is significant (approximately 6 million hectares a year since 1990). 38 Primary forests are “forestsof native species, in which there are no clearly visible indications of human activity and ecologicalprocesses are not significantly disturbed.”39 The influence of indigenous peoples or small communitiesdoes not necessarily strip a forest of its primary or old-growth title, as their presence may be consideredpart of nature and their impact on forest ecosystems is diminutive. 40 It is important to highlight the lossof primary or old-growth forest loss within the greater context of decreasing forest coverage because ofthese forests greater capacity to support biodiversity, human communities and to sequester carbon.However, the FAOs GFRA 2005 numbers do not account for the loss of primary forests or primaryforest degradation. By nature of the definition of primary forests, at best, the loss of primary forestscan only be replaced by secondary forest. The term primary forest, as used by FAO, is generally synonymous with other commonly usedterms, such as ancient forest, old-growth forest, virgin forest, primeval forest, ancient woodland andfrontier forest. All of these words refer to the principal concept that such forests have been allowed tofollow natural successions of growth and development with little to no interference by human beings.Some nuances in these terms can be identified. For example, old-growth forest has been defined byDavid Middleton as “a structurally complex forest, hundreds of years old, that has not been directlyaltered by humans.”41 The relevant term is “structurally complex,” which requires: (1) presence ofmulti-level forest canopy, (2) relatively large, old living trees (as determined by the location andspecies), (3) dead standing trees or snags, and (4) downed trees, and generally also exhibits a variety oftree sizes and age, as well as breaks in the canopy. 42 It does not, however, necessitate that these forestshave never been felled in the past and are thus the product of regeneration, or in other words very oldsecond-growth forests.43 In some places, where primary forest is nearly non-existent, old secondary-growths have in fact been called old-growth forests (e.g., parts of Eastern U.S.). 44 Ancient forest,36 Greenpeace, Illegal Logging, 2008, http://www.greenpeace.org/usa/campaigns/forests/forests-worldwide/illegal- logging?page=2#.37 FAO, supra note 29, at 13.38 FAO, supra note 29, at 26.39 Id.40 John Berger, supra note 25, at 28 (2008); Dirk, Nielson & Tangley, supra note 33, at 14.41 David Middleton, Ancient Forests: A Celebration of North Americas Old Growth Forests (1992).; John Berger, supra note 25, at 27.42 John Berger, supra note 25, at 28.43 These are also referred to as “modified natural forests” - “forests of naturally regenerated native species in which there are clearly visible indications of human activity.”; FAO, supra note 29, at 13.44 Id. at 29. Page 21 of 233 Copyright ©2010 by Elaine Hsiao
  • 22. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010however, because of its explicit reference to a different time-scale (many hundreds or thousands ofyears old) is more interchangeable with the term primary forest (as is the case with virgin forest,primeval forest and ancient woodland). Frontier forest are also differentially defined, as “large intactnatural forest ecosystems,” which “are – on the whole – relatively undisturbed and big enough tomaintain all of their biodiversity, including viable populations of the wide-ranging species associatedwith each forest type.”45 Size, in this case, is the potentially differentiating requisite factor. In mythesis, I will use the terms primary forest and secondary forest to differentiate between those whichremain in their natural state and those which have been altered by humans. Primary forests are critically important and their conservation should be prioritized. The keyfactors to derive from all of these loosely synonymous terms are: (1) these forests have been evolvingand developing diverse characteristics in response to natural evolutionary processes that make themmore adaptable to future environmental changes, (2) these forests represent ecosystems in their mostmature and stable state, and (3) the lack of human interference allows ecosystem processes to functionundamaged. Already, 76 countries have lost all of their frontier forests and most of what is left hasbeen deemed threatened (where ongoing or planned human activities will eventually degrade the forestecosystem).46 In places where primary forest has been converted to second-growth forest, these areasshould be protected and managed so as to foster the natural re-development of old-growthcharacteristics.47 This will strengthen forest resilience and thereby increase the viability of all of itsdependent life forms. It also promotes the return or preservation of frontier forests, which are requiredto support a broad array of biological and genetic diversity. The benefits of doing so are multiple.Value of forests The resources and ecosystem services that forests provide help to sustain all life on Earth. Weuse forests for raw materials to make a multitude of timber and non-timber products. Some forestcomponents enter world markets directly as finished products. All of these forest products form part ofthe natural resource base that drives globalization, trade and economic development. Forests alsoprovide numerous other services that we have only recently begun to attempt to quantify in economicterms. These ecosystem services range from oxygen production, carbon sequestration, protection ofwater purity and quantity to the feeding of aquatic food webs. Additionally, forests also influenceweather and local and global climates; a function which is being increasingly noticed as the humanspecies confronts global climate change. Another service provided by forests is their capacity topromote biological diversity. Efforts to put a monetary value on ecosystem services provided byforests is complex and difficult. Nevertheless, we must recognize that all of these functions areimportant and play a critical role in supporting the quality of life on Earth. There is also always the elusively non-quantifiable intrinsic value of forests. Although this is45 Bryant, Nielson & Tangley, supra note 33, at 12.46 Id. at 12, 19.47 See id. at 19. Page 22 of 233 Copyright ©2010 by Elaine Hsiao
  • 23. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010said to be subjective (beauty is in the eye of the beholder), there is something about the presence offorests and wooded areas that humans seem to appreciate. For example, the fact that property prices,all other things being equal, are higher in places near woodland or forest than in areas not in proximityto forests, is indicative of our acknowledgment of this value.48 In a way, it may even be indicative of aneconomically quantifiable value of human appreciation for the presence of forest based on thedifference in property values. However, there are those who believe that the worst thing you can do tothe environment is put a dollar value to it. Much of the discussion below will show that despiteattempts to put tangible figures to the value of the forests, there is much that cannot be quantified. Itcan only be noted that forests are intrinsically invaluable.Direct economic value (timber, non-timber forest products) Human uses of natural forests (as opposed to managed forests, such as monoculture forestplantations of introduced species whose sole purpose is timber production) are wide-ranging andevidenced in our daily lives. They can be distinguished between timber forest products and non-timberforest products. Other non-timber goods and services that can be derived from forests are geneticinformation or recreation and passive uses. The amount of monetary value that humans have beenextracting from forests and forest products is phenomenal. World trade in timber products alone iscalculated to be approximately $120 billion USD per year. 49 Timber products are essentially thosederived from tree harvesting. With woods extracted from forests we produce paper, furniture, mulch,musical instruments, charcoal, firewood, tea, etc. Estimates of the dollar-value of non-timber forestservices has ranged from just a few dollars to nearly $800 per hectare. 50 Non-timber forest products areextractive products that come from sources other than wood. These include the taking of wildlife ortree products, such as honey, seeds, berries, latex and gum. 51 From these other forest resources wecreate “adhesives, waxes, turpentine, polymers, gunpowder, medicinal herbs, perfumes, sachets” andmore. The pharmaceutical and health industry has been extremely lucrative in extracting economicbenefit from biological and genetic resources found only in forests. It is also known that some 1.75million different organisms live in forests and it is believed that there are many more yet to be48 Secretariat of the Convention on Biological Diversity [CBD Secretariat], Technical Series No. 4, The Value of Forest Ecosystems 10 (2001).49 Id. at 11.50 Unfortunately, there are many reasons for the wide-ranging valuation of non-timber economic value for forests, making even these figures largely contestable. Studies reviewed by the Secretariat of the Convention on Biological Diversity attempted to find consensus on such a value, but ultimately determined that many of these studies were based on inconsistent definitions of non-timber forest products (the list of ecosystem services evaluated vary greatly) and what was being measured (e.g., potential goods, geographic range of study, etc.). Id. at 12-16; See also A. Chiabai, C.M. Travisi, H. Ding, A. Markandya & P.A.L.D. Nunes, Economic Valuation of Forest Ecosystem Services: Methodology and Monetary Estimates 3 (Fondazione Eni Enrico Mattei 2009) (regarding lack of consistent and comprehensive methodologies of evaluatng of forest ecosystem services).51 CBD Secretariat, supra note 47, at 12. Page 23 of 233 Copyright ©2010 by Elaine Hsiao
  • 24. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 52discovered. Recreation or passive uses of forests also form a multi-billion dollar global industry. Insome parts of the world, it is the main driver of national economies and development (e.g., Costa Rica).Indirect economic value (ecosystem services) Ecosystem services are the processes and functions that natural forests perform and from whichwe benefit. Forest ecosystem services include regulation of local and global climate, enhancement ofsoil retention and quality, protection of watersheds, regulation of the hydrological cycle and waterquality, amelioration of water and weather events, facilitation of pollination, storage of geneticinformation and provision of aesthetic landscapes and habitat for biological diversity.53 A calculation ofglobal ecosystem services in the year 2000 alone by Boumans et al., utilizing a methodology calledGUMBO, resulted in an estimate of the value to be around 4.5 times the value of Gross World Product,or $180 trillion USD.54 Some say that we are mostly benefiting from this for free, 55 but that claim failsto notice that not all payments are made in the form of money. When forest ecosystems lose theirfunctionality, we pay through losses in our quality of life, health and the resource base which sustainsour development. Here, discussion of two examples – biodiversity and carbon-sequestration – arefurther elaborated. The value of forests includes the value of all of the biological diversity present within the forestsystem. An important difference must be noted here regarding biodiversity, which we are speakingabout now, and biological resources, which we mentioned earlier in the context of non-timber forestproducts. Biological diversity is all of the biological resources (the existing species), the roles theyperform and the genetic resources which they contain.56 It is essential for the continued adaptation ofspecies to environmental change, their reproduction and evolution, as well as the ecosystem functionsthat they provide. The Secretariat of the Convention on Biological Diversity (CBD Secretariat) hashighlighted and referred to this distinction as the “value of information and insurance.”57 Theinformation is all of the evolutionary and genetic information that existing biological resources containand the insurance is the diversity of characteristics in this information (as the result of masterfulevolution and co-evolution) that makes them resilient to natural changes (not including humanintervention).58 The strength of forest biological diversity helps to ensure that humans will continue tobenefit from forest goods and services for generations to come.52 Id. at 1.; D. Hawksworth & M. Kalin-Arroyo, Magnitude and Distribution of Biodiversity 107-192 (V. Heywood ed., Cambridge University Press, 1995).; N. Stork, The Magnitude of Global Biodiversity and Its Decline, in The Living Planet in Crisis: Biodiversity Science and Policy 3-32 (J. Cracraft & F. Grifo eds., Columbia University Press, 1999).53 Chiabai et al., supra note 49, at 4; CBD Secretariat, supra note 47, at 11.54 Roelof Boumans et al., Modeling the Dynamics of the Integrated Earth System and the Value of Global Ecosystem Services Using the GUMBO Model, 41 Ecological Economics 529, 556 (2002).55 E.g., Geoffrey Heal, Valuing Ecosystem Services, 3 Ecosystems 24 (2000).56 2005 Global Forest Resources Assessment, supra note 29, at 37.57 CBD Secretariat, supra note 47, at 16.58 Id. Page 24 of 233 Copyright ©2010 by Elaine Hsiao
  • 25. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 In a world of climate change, one of the most important ecosystem services of forests is itsability to sequester carbon. FAO estimates that the worlds forests are a carbon sink for approximately283 gigatonnes (Gt) of carbon in the form of biomass. 59 The amount of carbon stored in forestbiomass, soil, litter and dead wood overall (638 Gt in 2005) 60 is more than the amount of carbon in theatmosphere (379 Gt in 2005).61 However, deforestation and forest loss drastically diminish the amountof forest biomass, causing a loss of carbon sequestration capacity of around 1.1 Gt per year. 62 It is amotivating factor behind the development of a mechanism for “reducing emissions from deforestationand forest degradation in developing countries; and the role of conservation, sustainable managementof forests and enhancement of forest carbon stocks in developing countries,” or the infamous REDD-plus.63 If a successful mechanism manages to emerge from the contentious debates of the globalclimate change negotiations, the trend of greenhouse gas emissions may be mitigated in part throughthe protection of carbon-sequestering forests. With business as usual driving global greenhouse gasemissions, including carbon dioxide, above levels which scientists consider to be “safe” (350ppm), theability of forests to mitigate such emissions is critical.64Holistic forest protection The natural resources, ecosystem services and intrinsic value that forest provide are bestprotected holistically. The various valuations of forest benefits to human beings above illustrate thefragmented and disjunct ways in which human beings deal with forest issues. Forests are commodifiedand different uses are given different values, thus prioritizing some benefits over others. However, aforest can only offer the totality of goods and services that it provides in its entirety, as the holisticcomplex system that Berger and Middleton described. Large-scale conservation of forests in tracts large enough to ensure their viability and theviability of their dependent species is critical. Fragmentation of forests diminishes their capacity tosustain wildlife and their resilience to environmental changes.65 This may become increasingly relevantas species are compelled to move to new and more hospitable habitats as theirs are altered by the59 2005 Global Forest Resources Assessment, supra note 29, at 14.60 Id.61 Bangkok Metropolitan Administration [BMA], Green Leaf Foundation [GLF] & United Nations Environment Programme [UNEP], Bangkok Assessment Report on Climate Change 2009, at 36 (BMA, GLF & UNEP, 2009).62 Id.63 Conference of the Parties to the United Nations Framework Convention on Climate Change [UNFCCC COP-13], Dec. 3-15, 2007, Report of the Conference of the Parties on its Thirteenth Session, Held in Bali from 3 to 15 December 2007 Addendum Part Two: Action Taken by the Conference of the Parties at its Thirteenth Session [hereinafter Bali Action Plan], 10, FCCC/CP/2007/6/Add.1 (Mar. 14, 2008).64 James Hansen et al., Target Atmospheric CO2: Where Should Humanity Aim?, 2 Open Atmos. Sci. J. 217 (2008), available at http://arxiv.org/abs/0804.1126 (last visited Oct. 20, 2009).65 Larry Harris, The Fragmented Forest: Island Biogeography Theory and the Preservation of Biotic Diversity 72-84 (The University of Chicago Press, 1984); Wilson & Willis (1975). Page 25 of 233 Copyright ©2010 by Elaine Hsiao
  • 26. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 66impacts of climate change. If habitats are discontinuous, sparse and degraded, species may not beable to make the necessary migrations or transitions to adapt to climate change. This is why eightCentral American nations are collaborating to create and implement the Mesoamerican BiologicalCorridor, a network of protected areas and buffer zones, to prevent loss of biological diversity andecosystems and to fortify resilience to environmental changes.67 Large-scale landscape conservationthrough biological corridors is needed for protection of forests at scale that will ensure sustainability offorest goods and services for generations to come and resilience to climate change.68Mountains and Forests Mountains are a lesser understood ecoregion of the world. Nevertheless, there are someorganizations and institutions involved in mountain research, protection and governance. Some ofthese organizations are similarly involved in forest issues, but few seem to address these two in anintegrated manner, despite the fact that these two ecoregions often overlap. From the Box below, it canbe noted that there are significantly fewer organizations involved in mountain issues and it is extremelyrare that an entirely separate government entity is created explicitly for mountain protection, regulationor development. Box 1.2 Mountain Oversight: Who Monitors the Worlds Mountains?Below is a selective summary of the main organizations and institutions involved in the monitoring and governance of theworlds mountains. Organization What they do Website International InstitutionsFAO Supporting sustainable development of http://www.fao.org/mnts mountain people and mountain environments through field programs, normative work and direct country supportUNEP-WCMC Monitoring and information reporting http://www.unep- on scientific, ecological and social wcmc.org/habitats/mountains/ aspects of mountains66 UNEP Ad Hoc Technical Expert Group on Biodiversity and Climate Change of the Convention on Biological Diversity, Interlinkages Between Biological Diversity and Climate Change and Advice on the Integration of Biodiversity Considerations Into the Implementation of the United Nations Framework Convention on Climate Change and its Kyoto Protocol, UNEP/CBD/SBSTTA/9/11 (Nov. 10, 2003).67 Comisión Nacional para el Conocimiento y Uso de la Biodiversidad [CONABIO], Manual Operativo: Corredor Biologico Mesoamericano 4 (2006).68 Comisión Centroamericana de Ambiente y Desarrollo [CCAD], Mesoamerican Biological Corridor: A Platform for Sustainable Development 13-14 (2002). Page 26 of 233 Copyright ©2010 by Elaine Hsiao
  • 27. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010Bishkek Global Mountain Summit Summit held in Kyrgyzstan in 2002 to http://www.globalmountainsummit.org/ discuss issues relating to improving the lives of mountain people and safeguarding mountain ecosystems and watershedsUNESCO Sustainable mountain resources http://portal.unesco.org/science/en/ev.p management through research, hp- conservation and information sharing URL_ID=6804&URL_DO=DO_TOPI Monitoring of global change in C&URL_SECTION=201.html mountain biospheresIUCN-World Commission on Develops workshops and best practices http://protectmountains.org/Protected Areas (WCPA) regarding connectivity and http://www.mountains- transboundary conservation, as well as sustainable development of mountain wcpa.org/index.htm biomes http://www.iucn.org/about/union/comm Commission on Mountain Ecosystems issions/cem/cem_work/tg_me/Secretariat of the Convention on Global Mountain Biodiversity http://gmba.unibas.ch/Biological Diversity (CBD) Assessment (GMBA) Regional InstitutionsCommission Internationale pour la Support sustainable development in the http://www.cipra.org/enProtection des Alpes (CIPRA) AlpsInternational Centre for Integrated Regional knowledge development and http://www.icimod.org/Mountain Development (ICIMOD) learning center serving eight regional member States of the Hindu Kush- Himalayas (Afghanistan, Bangladesh, Bhutan, China, India, Myanmar, Nepal, and Pakistan)Consortium for the Sustainable Sustainable development in the Andean http://condesan.org/Development of the Andean ecoregionEcoregion (CONDESAN) National InstitutionsThe Banff Centre North American hub of the Mountain http://www.banffcentre.ca/mountaincult Partnership and organizer of mountain ure/ culture and environment programs in Canada Research InstitutionsMountain Forum Network supporting information- http://www.mtnforum.org/ sharing, capacity-building, mutual support and advocacy for sustainable Page 27 of 233 Copyright ©2010 by Elaine Hsiao
  • 28. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 mountain developmentMountain Partnership Member network that provides an http://www.mountainpartnership.org/ information clearing house and facilitates joint initiatives based on recommendations derived from the 2002 World Summit for Sustainable DevelopmentCenter for Development and Mountain Agenda focuses on http://www.cde.unibe.ch/Research/MA_Environment (CDE) institutional collaboration and Re.asp networking to foster research, development partnerships and policy support in mountain areas Publishes Mountain Research and Development journalMountain Research and Promotes research on and sustainable http://www.mrd-journal.org/Development development approaches to mountain ecoregions and their surrounding lowlandsUniversität für Bodenkultur Promotes sustainable, science-based http://www.boku.ac.at/mf.htmlWien (BOKU) Mountain management of forests and woodlands in mountain areas, while consideringForestry Program specific ecological, ethical, technical, social, economical and political conditions of complex mountain systemsPerth College Centre for Mountain Research with a focus on mountain http://www.perth.ac.uk/specialistStudies environments and the people who centres/cms/Pages/default.aspx depend on them http://www.rgs.org Facilitates Royal Geographical Societys Mountain Research GroupChengdu Institute of Mountain Publishes Journal of Mountain Science http://jms.imde.ac.cnHazards and Environment, ChineseAcademy of Sciences (CAS) and theUnited Nations University (UNU)Institut de la Montagne de Interdisciplinary mountain research to http://www.institut-montagne.org/lUniversité de Savoie raise public awareness and inform public policies Development of a Center of Mountain Resources Non-governmental Organisations (NGOs)Mountain Institute Support economic development and http://www.mountain.org/ Page 28 of 233 Copyright ©2010 by Elaine Hsiao
  • 29. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 traditional cultures of mountain peoplesRoyal Society for the Protection of Protection of upland nature reserves http://www.rspb.org.uk/ourwork/conserBirds (RSPB) Monitoring bird ecology in uplands vation/projects/uplands/index.asp Despite the lack of attention to highland areas, mountains are a critically important ecoregion.These geological formations are primarily defined according to (1) their elevation, which depending ontheir latitude is at least 300-1000 meters above sea-level, 69 and (2) steepness of slope, generally at least2° over 25 km.70 They can also be categorized according to their volume, (relative) relief, spacing andcontinuity.71 Mountains can be singular isolated features or one of a series of features in a mountainrange (a single ridge), a mountain chain (major linear features that continue for hundreds to thousandsof miles), a mountain mass (a group of irregularly shaped mountains exhibiting no linear trend) or amountain system (complex continent-spanning features that often consist of a combination of theaforementioned mountain groupings).72 Altogether, mountains cover one-fifth of the worlds terrestrialsurfaces (at least 30 million km2).73 Figure 1.3: Mountains of the World7469 The UNEP World Conservation Monitoring Centre [UNEP WCMC] follows a lower limit of 300 meters, while a lower limit of 1,000 meters has been used for tropical regions near the equator. V. Kapos, J. Rhind, M. Edwards, M.F. Price & C. Ravilious, Developing a Map of the Worlds Mountain Forests, in Forests in Sustainable mountain Development: A State-of-Knowledge Report for 2000, at 4-9 (Martin Price & Nathalie Butt eds., CABI, 2000).70 C. Korner & M. Ohsawa et al., Mountain Systems, in Ecosystems and Human Well-Being: Current State and Trends 681, 683 (R. Hassan, R. Scholes & N. Ash eds., Island Press, 2005).71 John Gerrard, Mountain Environments: An Examination of the Physical Geography of Mountains 3 (1990).72 Id. at 6-7.73 Denniston, supra note 23, at 5, 7.74 Martin F. Price & Bruno Messerli, Fostering Sustainable Mountain Development: From Rio to the International Year of Mountains, and Beyond, 53 Unasylva 6, 10-11 (2002). Page 29 of 233 Copyright ©2010 by Elaine Hsiao
  • 30. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 The characteristics which define mountains also define their ecosystems and their extremevulnerability to environmental change. As Derek Denniston notes in a Worldwatch Institute Report onmountain ecosystems and cultures, “one of the most defining characteristics of mountains is that therise in elevation is sufficient to produce altitudinal zonation – elevation belts (or zones) of climates,soils and vegetation.”75 The microclimates that exist in mountain systems stretch across the gambit,exhibiting dramatic climactic shifts in relatively short distances. It is reported that for a mere 100mchange in elevation, the climactic variation can be equated to that which you might observe in a 100kmchange in latitude.76 These extreme microclimates also host a wide variety of microhabitats thatsupport endemic species, many of which are threatened with extinction. 77 Many endemic mountainspecies have evolved to exist in a very specific location with a very specific climate; even the slightestchange can be disastrous to their viability.78 The vertical nature of mountains provides for broadbiological diversity, but it also inhibits the recovery of degraded ecosystems. High altitudes and colderclimes slow ecosystem growth, while drastic gradients in mountain terrain and/or climates make itdifficult or impossible for species to move in order to adapt to environmental change.79 Forests are a prime example of a complex ecoregion that is sensitive to environmental changes75 Denniston, supra note 23, at 12.; David Smethurst, supra note 23, at 39.76 Denniston, supra note 23, at 13.77 Id. at 15.78 Id. at 42-44.79 Id. Page 30 of 233 Copyright ©2010 by Elaine Hsiao
  • 31. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010in mountain systems. A global mapping study by Kapos et al., based on GIS overlays of mountain dataand forest data, revealed that nearly 9.1 million km 2 or 28% of the worlds forest cover is found onmountains.80 Box 1.3 Areas of different forest types occurring in each mountain class (Km2)81 Class 6 Class 5 Class 4 Class 3 Class 2 Class 1 >= 4500m 3500- 4500m 2500-3500m 1500-2500m 1000-1500m 300-1000m & Forest Type & slope>=2° & slope >=5° local TOTAL or local elevation elevation range >300 range >300Tropical (&subtropical) 19,359 83,597 139,607 399,656 482,061 1,197,610 2,321,890moist forestsTropical (&subtropical) 183 15,054 35,293 50,565 107,267 343,390 551,752dry forestsTemperateand borealdeciduous 151,809 547,984 788,684 1,377,105 2,890,544needleleafforestsTemperateand borealevergreen 2,008 22,954 1,241 76,209 313,908 985,600 1,376,958needleleafforestsTemperateand borealdeciduous 1,713 19,832 122,858 476,865 441,055 1,275,723 2,338,046broadleaf andmixed forests TOTAL 23,263 141,437 450,808 1,551,279 2,132,975 5,179,428 9,479,19080 Id. at 8.; The UN FAO reports slightly lower numbers of just below 8.2 million km 2 or 24.7% of the worlds forest cover found on mountains, See Korner & Ohsawa, supra note 69, at 687, citing 2005 State of the Worlds Forests, supra note 30.; UNEP WCMC has placed this number at 23%, See UNEP World Conservation Monitoring Centre [WCMC], Mountain Watch 25 (2002).81 UNEP WCMC, Mountains and Mountain Forests: Global Statistical Summary (2009), http://www.unep- wcmc.org/habitats/mountains/statistics.htm. Page 31 of 233 Copyright ©2010 by Elaine Hsiao
  • 32. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 2Of these identified mountain forests, more than 4 million km are coniferous needle-leaved forest andapproximately 2 million km2 are moist tropical forests.82 Although there is only half as much tropicalmountain forest, they are representative conservation hotspots. Tropical forests face higher instances ofdeforestation and exhibit higher instances of biological diversity. The much threatened tropicalmontane cloud forests are exemplary of the rarity and vulnerability of tropical montane forests.83 When faced with human pressures at the base of and around mountain areas, forests as withother biota, may experience “ecological squeeze” as they are pushed further into and up mountains.However, trees only grow on mountains in the montane belt, defined as the “lower mountain limit tothe upper thermal limit of forest.” 84 The upper-limit, commonly known as the timberline, can occur at500 meters on mountains at higher latitudes, or be as high as 5000 meters on mountains closer to theequator.85 Even slight environmental changes, such as a 2°C rise in annual mean temperature couldturn a montane forest ecosystem into desert.86 Mountains and their forests often serve as a refuge forspecies threatened by human communities and development, making the preservation of thesesanctuaries particularly relevant in a climate change world. Mountain forests are the natural stewards of mountain watersheds and home of many threatenedendemic species. In Eastern Malaysia, the montane forests of Mount Kinabalu house at least 1,000species of orchids and 600 species of fern; not to mention, two-thirds of the islands endemic mammalsare found in these mountain forests.87 The hydrological resources that flow through mountain forestecoregions is important to the survival of these species and to the forest habitat themselves. The loss offorest cover on mountains inhibits it from providing one of its most critical environmental services –the supply and storage of water. 88 Tropical montane cloud forests, for example, depend on waterextracted from clouds and fog, which they then feed into tributaries and streams. Tropical montanecloud forests can harvest an additional 15-20% of ordinary rainfall (sometimes as much as even 50-60% depending on exposure) because of their high altitude, which puts them in direct contact withclouds and fog.89 Anthropogenic climate change is now shifting cloud patterns and causing tropicalmontane forests to lose moisture. In Costa Rica, the after-effect to the Monteverde Cloud ForestReserve has been the disappearance of at least 20 different species of frogs and toads. 90 Deforestation82 Id.83 International Union for the Conservation of Nature [IUCN] & World Wildlife Fund [WWF], Tropical Montane Cloud Forests: Time for Action (2000).84 Korner & Ohsawa, supra note 69, at 684.85 Kapos et al., supra note 68, at 5.86 E.g. Denniston, supra note 23, at 43 (a 2°C increase in annual average temperature “would cause most of the [Tibetan Plateaus] current ecosystems to disappear and, in the central and northern sections, to be replaced with desert”).87 Id. at 10.88 M.F. Price & B. Messerli, Fostering Sustainable Mountain Development: From Rio to the International Year of Mountains, and Beyond, 53 Unasylva 6, 12 (2002).89 IUCN & WWF, supra note 82, at 8.90 Id. at 12. Page 32 of 233 Copyright ©2010 by Elaine Hsiao
  • 33. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010can create a similar effect in altering cloud formations, plus it diminishes the number of trees availableto capture the moisture that is left in the atmosphere. 91 Environmental change or degradation tomountain forests threatens the mountains and forests themselves, as well as the life that depends onthem for survival.Mountain Forest Dependent Peoples There is currently little examination of who mountain dependent peoples might be, where theylive and the nature of their dependency. If studies of forest dependent peoples seem few andinconsistent, studies of mountain peoples are even more illusory. There doesnt seem to be a paralleldefinition of mountain dependent peoples, as compared to forest dependent peoples. The term,“mountain people,” seems to refer to inhabitants of mountain ecoregions, which fails to consider levelsof dependency upon mountain resources. Even the 2003 Quito Declaration Charter for WorldMountain People does not define who “we,” the mountain people are. 92 The International Year ofMountains 2002 championed an all-inclusive approach, touting the motto, “We are all mountainpeoples,” in hopes of raising awareness and political support for mountain issues. Although thestatement is true in many senses, it does not help the global community identify mountain forestdependent peoples, understand their issues, or more coherently address the vulnerabilities andchallenges they face in protecting their environment, livelihoods and cultures. Needless to say, there isnot any more consensus on what a definition of mountain dependent peoples might look like, and howone might go about quantifying such peoples, than there is with forest dependent peoples. Mountain forest peoples are the communities who live directly in mountain forests and dependvery much upon mountain forest resources for subsistence, livelihood and development (social,economic and cultural). Unfortunately, there is little information on mountain forest peoplesspecifically; rather, studies have tended to segregate the two classifications – forest peoples andmountain peoples. There are various categories into which people might be classified as “forestdependent peoples,” but the one of most interest to us here refers to the people (i.e., farmers, artisans,traders and landless peasants) living in or near forests who obtain most of their livelihood from theforest.93 This is because the nature of their dependency on forests, for the reasons stated above, is muchstronger and more direct than say, urban dwellers with non-forest dependent livelihoods. 94 In extendingthat definition, “mountain dependent peoples” can thereby be understood as people who live in or nearmountains who obtain most of their livelihood from the mountain. Similarly, “mountain forestdependent peoples” can be defined as those people who live in or near mountain forests and who obtainmost of their livelihood from the mountain forest.91 Id. at 13.92 Quito Declaration Charter for World Mountain People (Association des Populations des Montagnes du Monde, Sept. 4, 2003), available at http://www.mountainpeople.org/en/histoire/charte.php (last visited Nov. 4, 2009).93 Calibre Consultanats, Numbers of Forest Dependent People: A Feasability Study 25, 39 (2000)94 See also id. Page 33 of 233 Copyright ©2010 by Elaine Hsiao
  • 34. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 There is a great need for definitive anthropological or socio-economic/socio-ecologicalassessments of mountain forest dependent peoples. 95 It is indeterminate how many forest dependentpeoples are also mountain peoples (or vice versa) and to what extent they depend upon mountainforests specifically. A study estimates that there are at least 12 million indigenous forest peoplescomposed of around 1,400 different ethnic groups, but this is based on a limited study area meaningthat the global figure is much larger. 96 A UN FAO study of mountain populations based on year 2000data asserted that there are some 720 million people (12% of the world population) living in mountainareas, with 90% of them living in developing or transition nations. 97 They consider 245 million ofthese to be vulnerable rural mountain people – those who live in rural mountain areas of developing ortransition States where cereal production is less than 200 kg per person and the bovine density index islow to medium (in other words, rural mountain people vulnerable to food insecurity). 98 Unfortunately,this definition of “vulnerable rural mountain people” does not coincide with the number of mountainforest dependent people, which would help us in characterizing the relationship between mountainforests and human communities. When mountain forest dependent peoples cannot be described withsome clarity or completeness, it is no wonder that mountain forest and mountain forest communityissues are slipping under the radar. The FAO uses the same mountain classifications (Class 1 through 6) defined by the UnitedNations Environment Programme – World Conservation Monitoring Centre (UNEP-WCMC), whichare distinguished primarily according to elevation and slope. 99 Based on census data from the year2000, the FAO undertook a GIS assessment of where mountain populations live and published itsfigures in a working paper entitled, “Towards a GIS-Based Analysis of Mountain Environments andPopulations.” In its study, the FAO identified primary land uses of mountain areas according to the sixclasses and population figures in rural mountain areas of developing and transition countries. 100 Usingselected information from the table “Rural mountain population in developing and transition countries,by land use category and mountain area class,” it is possible to extract numerical figures for the numberof rural mountain people in developing and transition countries according to forest related land usecategories and mountain area class. Forest related land use categories are land use categories listed inthe FAO data table that include some form of forest use. A listing and summation of the populationfigures from those selected forest categories arranged by mountain class results in the following table: Table 1.1: Rural Mountain Population in Developing and Transition Countries by Land Use Category and Mountain Area Class95 H. Kreutzmann & C. Stadel, Mountain Peoples, in Forests in Sustainable Mountain Development: A State of Knowledge Report for 2000, at 85, 88-89 (Martin F. Price & Nathalie Butt eds., CABI, 2000).96 Calibre Consultants, supra note 92, at 21.97 Barbara Huddleston, Ergin Ataman & Luca Fe dOstiani, Towards a GIS-Based Analysis of Mountain Environments and Populations 4 (FAO, Working Paper No. 10, 2003).98 Id. at 22.99 Id. at 2.100Id. at 11 tbl. 6.c. Page 34 of 233 Copyright ©2010 by Elaine Hsiao
  • 35. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 Mountain area class Grazing land with Mainly closed forest Mixed use: closed Total some cropland, closed forest, grazing land forest and barren and cropland land Number of People (in thousands)Class 6 1,387 0 0 1,387(above 4,500m)Class 5 6,683 40 40 6,763(3,500-4,000m)Class 4 21,521 1,672 1,264 24,457(2,500-3,500m)Class 3 67,491 8,489 9,013 84,993(1,500-2,500m)Class 2 49,563 10,599 10,894 71,056(1,000-1,500m)Class 1 106,691 29,449 21,001 157,141(300-1,000m)Total Population 253,336 50,249 42,212 345,797 Percent (%)Population by landuse category as share 52 10 9 7of total The table above indicates that there are potentially at least 346 million rural mountain people indeveloping and transition States occupying mountain forest lands. Please note, however, that thisfigure does not purport to be definitive as the author is well aware of its deficiencies and understandsthat this determination is neither comprehensive nor recent (census as well as forest data is derivedfrom the Global Forest Resources Assessment 2000 and global censuses from 2000). For example, thetable above does not account for the land use category “Protected Area” as used by the FAO in itsassessment, primarily because there is no assertion made by the FAO that the protected areas it includesin its GIS study have forest coverage or the amount of forest coverage. A protected area may have beenset aside for many other reasons (landscape preservation, watershed conservation, etc.) unrelated towhether or not there is forest cover. Nevertheless, it is likely that populated forest areas do exist withinthat category making the figure of 346 million an underestimate. In providing for a protected areacategory, however, the FAO also fails to mention how much of the protected areas are multiple useprotected areas (IUCN Category 6) with forests within which human activities are allowed. Also, in Page 35 of 233 Copyright ©2010 by Elaine Hsiao
  • 36. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 101identifying closed forest as the relevant forest related land use category for the authors figure, thereare definitional issues as to what a closed forest land use is (for example, whether it is productive orunproductive).102 It also excludes populations in areas of open forest and land uses within those openforests.103 In its assessment, the FAO accounts for all rural land areas through the five categories,which are designed primarily to understand agricultural land uses and the issue of food security inmountain areas, not to evaluate forest dependency of mountain peoples. Unfortunately, this limits theutility of the figures derived in the table above, so that they may merely serve as a possible indicatorthat there is a significant number of humans in developing and transition countries who are dependenton mountain forests. However, this shortcoming is indicative of the gaping lack of information onmountain forest communities and their relationship to these vulnerable ecoregions and presents anopportunity for further study. Mountain forest dependent communities are physically isolated from the rest of theircountrypeople and all too often politically marginalized and economically disenfranchised. 104Mountain forest communities tend to be composed of ethnic minorities that are “poorly represented inthe centres of political or commercial power where much of their fate is determined.”105 They representa broad a range of cultural diversity with distinct identities and evolved systems of “traditionalecological knowledge.”106 Of course, not all mountain people are the same, but most mountain peoplesdo share one thing in common – poverty. 107 To make matters worse, their resources and lands are oftenexploited by outsiders who do not share the same traditions or respect for customary land rights(typically, communal) and return little economic benefit back to the local communities. 108 Evendevelopment presumed to bring positive benefits to a local community, such as road construction, canhave negative impacts on mountain communities.109 Roads fragment forest ecosystems and facilitatedeforestation and other overexploitation of natural resources that degrade natural environments.110They also bring in new populations that exert additional pressures on natural resources and augment101The FAO defines closed forest as “Land covered by trees with a canopy cover of more than 40 percent and height exceeding 5 m. Includes natural forests and forest plantations.” UN FAO, Global Forest Resources Assessment 2000, at 324 (FAO, Forestry Paper 140, 2001).102Unproductive forest is that which is physically or legally unavailable for wood production and it includes forest which has been set aside as a protected area. Id. at 52.103The FAO defines open forest as “Land covered by trees with a canopy cover between 10 and 40 percent and height exceeding 5 m. … Includes natural forests and forest plantations.” Id.; See Huddleston, Ataman & Fe dOstiani, supra note 96, at 10-12, 25.104Douglas McGuire, Poverty in Mountain Areas, in Conservation and Sustainable Development in Mountain Areas (Martin F. Price ed., IUCN, 2004).105Derek Denniston, People and Mountains 2 (1996), in People and the Planet: People and Mountains, Pinnacles of Diversity, 5 People and the Planet np.106UNEP WCMC, supra note 79, at 20.107Derek Denniston, supra note 104, at 3.108Id.109See UNEP WCMC, supra note 79, at 52.; See also Derek Denniston, supra note 104, at 3.110Derek Denniston, supra note 104, at 4. Page 36 of 233 Copyright ©2010 by Elaine Hsiao
  • 37. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010problems of pollution or social conflict. For example, effects of mountain forest degradation resultingfrom unsustainable development, such as diminished hydrological services, are causing tensionsbetween upstream and downstream users over access to water resources. 111 This type of unsustainabledevelopment and conflict can be perceived as collateral to the centralized governance of mountainforest ecoregions, dominated by lowland interests. Marginalized poor communities living in mountain forests are dependent upon the naturalresources and services which these ecoregions provide. Many mountain communities have historicallysustained themselves through subsistence agriculture, a land use which is not the most efficient forsloped terrain with poor soil quality and shallow top soil. 112 The FAOs denomination of such a largeportion of mountain peoples as “vulnerable” to hunger supports the fact that mountain ecoregions aregenerally not prime for agriculture. Other traditional livelihoods common to mountains areas arepastoralism and uses of forest resources (e.g., timber and fuel). 113 However, this does not mean that theonly means of livelihood are cutting trees and clearing land. Non-timber forest products (NTFPs) areextremely important for local communities.114 This is perhaps even more true for the rural poor of theworlds mountain forests. A study by Kant et al., indicates that “the value of NTFPs is inverselycorrelated with GNP, suggesting that NTFPs are...an inferior product” (a product whereby the demandgoes down as income rises).115 In other words, the value of non-timber forest products is mostimportant for the poorest communities. Poverty makes the link to forest dependency stronger. Today,mountain livelihoods can be derived from other forms of extraction (i.e., mining), as well as tourismand recreation.116 In the near future, these communities may be able to benefit from payments forenvironmental services, particularly for watershed and forest conservation. The possible 346 million people who live in mountain forests are not the only ones who aredependent upon or benefit from these vulnerable ecoregions. One-fifth of the worlds humanpopulation (some 1.2 billion people) live on or at the base of mountains. 117 In addition, some twobillion people depend on mountains for food, hydroelectricity, wood and minerals, while half the worlddepends on mountain watersheds for their hydrological resources.118 When we consider how much ofthe worlds population benefits from forest goods and services, it could reasonably be said that, “We areall mountain forest people.”Threats to mountain forests and the communities that depend on them111Nikhat Sattar, Himal Initiative for Landscape Management, in Conservation and Sustainable Development in Mountain Areas (Martin F. Price ed., IUCN, 2004).112See Huddleston, Ataman & Fe dOstiani, supra note 96.113UNEP WCMC, supra note 79, at 17.114CBD Secretariat, supra note 47, at 13.115Id., citing S. Kant, J. Nautiyal & R. Berry, Forests and Economic Welfare, 2 Journal of Economic Studies 23, 31-43 (1996).116UNEP WCMC, supra note 79, at 17.117Denniston, supra note 23, at 5, 7.; Korner & Ohsawa, supra note 69, at 683.118Denniston, supra note 23, at 5, 7. Page 37 of 233 Copyright ©2010 by Elaine Hsiao
  • 38. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 The cultures and environments of mountain forest peoples are threatened and in some cases,endangered. In fact, some 28% of the worlds endangered languages exist only in mountain regions. 119A study of endangered languages by the Living Tongues Institute of Endangered Languages indicatesthat areas of disappearing languages tend to exhibit overlapping geographical instances with areas ofendangered biodiversity.120 The greatest threats to mountain forest ecoregions are land cover changeand climate change.121 Of the first of these, there are primarily two causes – natural disasters anddeforestation. Although we cannot control the storms or natural events themselves, we do have somecontrol over the processes that aggravate them. The Intergovernmental Panel on Climate Changeunder the United Nations Framework Convention on Climate Change in its most recent scientificassessment reported that anthropogenically induced climate change is likely to increase the severity andfrequency of natural disasters.122 Climate change is also in and of itself, one of the greatest threats tomountain forest environments. A third anthropological threat to mountain forests is violent conflict,which in turn can be perpetuated or exacerbated by deforestation and climate change. Deforestation is the clearing of forests by people in order to convert forested land to other uses,such as human development or agriculture.123 When deforested lands are incapable of or not allowed toregenerate as forests, they are considered to be converted and re-classified according to their new landuse. Numerical changes in the rate of forest conversion is only being ameliorated by growth inafforestation and regeneration efforts.124 Deforestation itself is not actually decreasing. It is alsointeresting to note that deforestation trends indicate a decrease in natural forests, while forestplantations are increasing.125 In other words, we are cutting down our primary and old-growth forestsand replacing them with inequivalent substitutes. 126 Deforestation is the result of a variety ofoccurrences ranging from legal and illegal logging (whether by clearcutting, high-grading orconversion of natural forests to tree plantations), erosion of topsoil, desertification, acid rain, diversionand damming waterways, destruction or degradation of wetlands, removal of native grasslands,introduction of invasive species and the collapse of fisheries. 127 Loss of forest cover in mountain areas119UNEP WCMC, supra note 79, at 21.120Gregory D.S. Anderson & K. David Harrison, Language Hotspots: Linking Language Extinction, Biodiversity and the Human Knowledge Base (Living Tongues Institute for Endangered Languages, Occasional Papers Series No. 1, 2006).121See UNEP WCMC, supra note 79.122Intergovernmental Panel on Climate Change [IPCC], Fourth Assessment Report, Climate Change 2007: Synthesis Report, Summary for Policymakers, IPCC Doc. AR4 SYR Summary for Policymakers (November 17, 2007), available at http://www.ipcc.ch/pdf/assessment-report/ar4/syr/ar4_syr_spm.pdf (last visited Oct. 31, 2009).123 2005 Global Forest Resources Assessment, supra note 29, at 18.124 Id.125 Id. at 26.126 See Berger, supra note 25, at 39, 152-153 (second-, third-, and fourth-growth forests in the U.S. are significantly inferior in terms of biodiversity, volume and size when compared to old-growth forests; forest plantations may be more productive in producing wood timber, but it is inferior in terms of biodiversity, protecting and purifying water, protecting against erosion and nutrient soil capacity as compared with real forests).127Id. at 156. Page 38 of 233 Copyright ©2010 by Elaine Hsiao
  • 39. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010is especially harmful. As mentioned earlier, forests contribute to local, regional and internationalclimate. The loss of mountain forests could alter mountain microclimates and in turn trigger a series ofdomino effects upon the highly climate-sensitive zonations of mountain ecology. Such changes canalter and degrade mountain watersheds and tributaries. It also destabilizes steep mountainsides proneto landslides, avalanches and erosion and minimizes their resilience to natural disasters and storms. 128Furthermore, deforestation accounts for one-fourth of the worlds anthropogenic carbon dioxideemissions, making it a significant contributor to climate change.129 Climate change is a cross-cutting threat to mountain forests and their peoples. Boreal forestsare highly vulnerable to climate change and as indicated in the figures above, they account for themajority of mountain forest (more than 6.6 million km 2 or approximately 70% of mountain forests).Overall, the IPCCs climate models indicate substantial losses of forest in boreal and tropical forests,including in mountain areas. Tropical forests are predicted to suffer the greatest species loss, furtheremphasizing the exigent nature of tropical biodiversity hotspots protection. 130 Due to their highaltitude, warming of average global surface temperatures are accentuated in mountain areas. 131Mountain forests specifically are expected to lose greatly from ecological squeeze, “increasinglyencroached upon from adjacent lowlands, while simultaneously losing high-altitude habitats due towarming.”132 One of the most determinant factors to the survival of mountain forests will be climatechanges impact on its hydrological systems. Other factors are shifting natural ranges of harmfulpathogens and insects, increasing wildfire size and frequency and difficulty migrating because ofhabitat fragmentation.133 All of these effects will compound with deforestation, degradation,fragmentation, contamination and development which already threaten mountain forests. A political map of world conflicts would highlight the fact that most of the worlds major armedconflicts are fought in mountain areas. According to Derek Denniston, “[i]n 1993, of 34 major armedconflicts taking place in 28 countries, 22 took place primarily in mountains, and another 8 includedsuch areas.”134 In an effort to identify some commonalities in mountain conflicts around the world,which arise out of very site-specific circumstances, Frederick Starr highlighted poverty, lack ofpolitical representation and participation, extraction of mountain resources to little or no benefit tomountain communities, and the subsequent radical psychology of victimization and militarized top-128 Id. at 121.129 A. Fischlin et al., Ecosystems, Their Properties, Goods, and Services 211, in Climate Change 2007: Impacts, Adaptation and Vulnerability, Contribution of Working Group II to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (M.L. Parry et al. eds., Cambridge University Press, 2007).130 Id. at 228, 232.131 M. Iyngararasan, L. Tianchi, S. Shrestha, P.K. Mool, M. Yoshino & T. Watanabe, The Challenges of Mountain Environments: Water, Natural Resources, Hazards, Desertification, and the Implications of Climate Change 21, in Key Issues for Mountain Areas (Martin F. Price, Libor Jansky & Andrei A. Iatsenia eds., United Nations University, 2004).; See also id. at 232.132 A. Fischlin et al., supra note 128, at 228.133 Id. at 228-230, 232-233.134 Denniston, supra note 104, at 3. Page 39 of 233 Copyright ©2010 by Elaine Hsiao
  • 40. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010down control as key ingredients to the complete social and economic breakdown, lawlessness andviolence of mountain conflicts.135 Starr notes that most conflicts are initially local, between wealthierresidents and poorer residents or between nearby ethnic groups, but these can escalate all the way tofull international conflict with international military involvement and widespread criminality. 136 Sincemany mountains lie on State boundaries, they tend to be seen as areas of national security; perhaps thisexplains the militarized clamp down that often occurs when local conflicts erupt.137 The presence of forests in marginalized mountain areas can further exacerbate conflicts.Sometimes deforestation is used as a tool of warfare (e.g., Agent Orange used to defoliate the tropicalforests of Vietnam or scorched-earth tactics in Kosovo) and even genocide of forest dependentmarginalized communities (e.g., the near cultural extinction of the Ache tribes due to deforestation oftheir traditional lands in Paraguay or the scorched-earth policies practiced by the Guatemalangovernment against indigenous Mayan populations).138 At times deforestation is used to finance theconflict (i.e., conflict timber in the Democratic Republic of Congo or DRC). 139 In the DRC, profitsfrom illegal logging and the charcoal trade are used to buy arms and supplies required to sustain violentconflict and human rights abuses.140 All too often, illegal logging routes coincide with pathways usedfor illegal trafficking of drugs, arms, wildlife and humans. The pervasiveness of such criminalactivities contributes to the ranking of environmental crimes as high priorities by both the U.S.Government in its “International Crime Threat Assessment” and INTERPOL.141135 Frederick Starr, Conflict and Peace in Mountain Societies 169, in Key Issues for Mountain Areas (Martin F. Price, Libor Jansky & Andrei A. Iatsenia eds., United Nations University, 2004).136 Id. at 173-176.137 Id. at 172, 175.138 Peter Sharp, Prospects for Environmental Liability in the International Criminal Court, 18 Va. Envtl. L.J. 217, 234 (1999).139See Steven Price, Deanna Donovan & Wil de Jong, Confronting Conflict Timber, in V World Forests, Extreme Conflict and Tropical Forests 117, 117 (Wil de Jong, Deanna Donovan & Ken-ichi Abe eds., Springer 2007) (defining conflict timber as “wood that has been traded or taxed at some point in the chain of custody by armed groups, be they rebel factions or state militaries, or by a civilian administration involved in armed conflict to finance hostilities or otherwise perpetuate conflict”).; See also Jamie Thomson & Ramzy Kanaan, United States Agency for International Development [USAID], Conflict Timber: Dimensions of the Problem in Asia and Africa iii (2004) (identifies two types of “conflict timber” - Type 1: when the harvest or sale of timber finances or sustains conflict and Type 2: when conflict emerges as a “result of competition over timber or other forest resources.” The situation in the Democratic Republic of Congo would be categorized as an example of Type 1 conflict timber).; See United Nations Security Council [UNSC], Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, U.N. Doc. S/2002/1146 (Oct. 16, 2002), available at http://www.un.org/News/dh/latest/drcongo.htm (last visited Nov. 19, 2008).140See Jeffrey Gettleman, Congo Violence Reaches Endangered Mountain Gorillas, N.Y. Times, Nov. 18, 2008. See also Mark Jenkins, Who Murdered the Virunga Gorillas, National Geographic, July 2008, at 34, 58-65.141See INTERPOL, Environmental Crime, Links with Serious and Organized Crime (2009), available at http://www.interpol.int/Public/EnvironmentalCrime/Default.asp (last visited Nov. 8, 2009).; United States [U.S.] Government Interagency Working Group, International Crime Threat Assessment (2000), available at http://www.fas.org/irp/threat/pub45270chap2.html#6 (last visited Nov. 8, 2009). Page 40 of 233 Copyright ©2010 by Elaine Hsiao
  • 41. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010Opportunities for Enhancing Stewardship for Humans and Nature in Mountain Forests Mountain forests present an interesting and multifaceted challenge for conservationists. Theyare areas with high instances of endemic biodiversity and fragile climate-attuned ecotone zonations ofwidely varied ecosystems that provide a range of goods and services upon which human beings depend.This linkage of very little understood sensitive and complex ecoregions with human populations allover the world imposes a series of extremely difficult tensions. Outside demand for mountain forestgoods and services introduce some very harmful elements into mountain forest areas. Extractiveindustries may exceed sustainable harvests with the economic benefits being siphoned away from localcommunities, leaving them degraded or polluted environments and little to no recourse. Even attemptsto institute systems of payments for environmental services may be seen as patronizing attempts atdictating permissible and non-permissible activities of mountain forest peoples on their lands inexchange for what may be perceived as meager compensation. Most importantly, these seeminglyparasitic or amensalism relationships emphasize the fact that mountain forest communities are all toooften politically insignificant and very much dependent on natural resources that “outside”communities and “their” laws are trying to control. Furthermore, anthropogenic climate change willcertainly aggravate the factors that contribute to mountain forest degradation and destruction, whileweaving an evermore complicated web of interconnections between local mountain forest peoples andthe rest of the world for millennia to come. The typical response to a multi-dimensional problem with international impacts is top-downState action. Given the interconnected, interrelated, integrated and interdependent nature of theenvironment, State action may very well rise to the level of global action, resulting in internationalcompacts or agreements imposing predetermined regimes on remote mountain forest peoples. Thepreferred mode of implementation for international environmental agreements is often through theState, the effect being that national governments are largely responsible for implementation andenforcement. Even assuming that the negotiators or decision-makers in these situations are the mostaltruistic, benevolent, well-intentioned people on Earth, the question still arises – how can an all-inclusive solution be fashioned for such a sensitive ecoregion and vulnerable peoples when so little isknown about them? The ones who know the most about mountain forests and their humancommunities are mountain forest people themselves. Yet, they are often not represented in nationalgovernments and much less, in international fora. The traditional knowledge that they have developedover the years as well as those practices which demonstrate local sustainability should be capitalizedupon – why reinvent the wheel? A stewardship regime for mountain forest ecoregions must include notonly consultation, but effective participation of mountain forest peoples. The engagement of local communities in decision-making and governance of their lands andnatural resources is an exercise in democracy – direct participation in a system of governance by thepeoples and for the peoples. Centralized mountain legislation and policy-making can impose systems Page 41 of 233 Copyright ©2010 by Elaine Hsiao
  • 42. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010of governance that are not well-suited for the unique complexities of mountain forest ecoregions. 142Devolved or decentralized governance, on the other hand, supports local communities and theirenvironments. In the East MacDonnell Ranges near Alice Springs, Australia, lands were returned forjoint management by the traditional landowners and the Northern Territorys Parks and WildlifeServices. Benefits from this transition are already manifesting, including indigenous participation inactivities to prevent wildfires that were damaging their petroglyph cultural heritage. 143 In theAdirondacks of New York in the U.S., a land preservation regime was instituted that allows localmountain populations to remain in protected wilderness. The communities themselves define priorityinterests for investing the monies received from taxes for the conservation of their wilderness areas andcritical mountain watersheds for downstream populations. Such money has been invested in schoolsand In a decentralized system based upon the subsidiarity principle, local communities are empoweredto make a positive transition to a paradigm of direct democracy. When it comes to native land stewardship, there are already more than a few movements bymountain, forest and indigenous peoples to confront key issues, such as deforestation and landdegradation, climate change, self-governance and community conservation. All around the world,mountain and forest, as well as indigenous communities have gathered in conferences and participatedin projects to voice similar concerns and to exchange ideas and experiences. Despite an overabundanceof negative externalities associated with globalization, it has undoubtedly brought the advantage offacilitating communication between marginalized communities and the rest of the world, allowing themto bring many of their shared issues to a greater audience. In 2002, representatives of mountainpeoples met in Quito to adopt the Quito Declaration, a Charter for World Mountain People, which setforth the basic interests and position of mountain peoples. 144 This Charter proclaimed the value of thehistory and traditions of mountains and their people, as well as a “rightful place in society” and controlof their development – one which is not confined to mere stewardship of the recreation or protectedareas of lowland peoples, but one of diverse opportunities and value for all the world and all the futuregenerations of mountain peoples.145 The representatives of mountain people from forty differentcountries asserted their desire to organize and to participate in decisions relevant to their lands, whetherlocal or international.146 Efforts to organize locally have sometimes occurred as a response to outside intervention. InJune of 2009, forest peoples of India convened at the National Forum for Forest People’s and ForestWorkers and unleashed the Dehradun Declaration of Forest People, a critical proclamation in resistanceto the commodification of forests and an assertion of community governance over their forest142Price & Messerli, supra note 87, at 16.143Central Land Council, Parks and Reserves Handed Back (Dec. 2008), available at http://www.clc.org.au/Media/releases/2009/East_MacDonnell_hand_back.html (last visited Nov. 14, 2009).144 Quito Declaration, supra note 91.145 Id. at para. 1-4.146 Id. at para. 5-6. Page 42 of 233 Copyright ©2010 by Elaine Hsiao
  • 43. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 147resources. Parallel to State Parties meeting in cities to negotiate the United Nations FrameworkConvention on Climate Change (UNFCCC) and its Kyoto Protocol (or any other potential progeny ofthe UNFCCC), indigenous representatives have been convening an International Indigenous PeoplesForum on Climate Change (IIPFCC) to lay out indigenous policy positions on climate change. In thesediscussions, it is noted that the indigenous peoples are not the most responsible for the problem, butthat their lands and way of life will suffer greatly regardless. While government negotiators have beenquibbling over funds and emissions levels, women in the mountain forests of Kenya have been plantingtrees, creating a Green Belt Movement from Kenya to other parts of Africa, not only sequesteringcarbon but strengthening mountain forest community resilience to the impacts of climate change. Thisis reminiscent of the Chipko Movement in the early 1970s, when women in the Indian Himalayasintervened non-violently to protect their local forests from being harvested and planted new trees toprevent erosion and protect water resources. 148 This intervention by mountain forest peoples to stop“outsiders” from extracting their resources is a protectionist action based on the premise that, “ecologyis permanent economy.”149 Mountain forest peoples are very aware of their situations and can offer long tried and truesolutions. The traditional knowledge and particular circumstances of mountain forest peoples and theirinvaluable environments form an area of study that demands greater attention. As D. Jane Pratt notesregarding mountain information, “[t]he most important gap is that such information is neithersystematic nor disaggregated spatially.”150 Information regarding mountain peoples and mountainforest peoples, no less, suffers from the same failures. Statistics are not collected to identify theparticular vulnerabilities of mountain forests and their peoples or the efficacy of applying traditionalknowledge and practicing local sustainability in sensitive mountain forest ecoregions. This means thatthe problems of mountain forests and mountain forest communities are not clearly understood, as theyare likely lost in a sea of more generalized statistics. This makes it difficult for policies and regulationsto be properly developed to address particular mountain forest complexities. In a shift away from thisinformation gap, specific studies of mountain forest ecology and cultures should be undertaken. In thisprocess, the experiences and traditional knowledge of mountain forest people must be incorporated,better understood, supported and then amplified when proven to be locally sustainable. Organizationsand institutions involved in forest and mountain oversight (see Boxes above) can facilitate collectionand free dissemination of this information, so that mountains and their forests might be betterunderstood by all.147Dehradun Declaration of Forest People (June 12, 2009), available at http://www.wrm.org.uy/countries/India/Dehradun.html (last visited Nov. 10, 2009).148 Robert Hart, Can Life Survive?, in Deep Ecology and Anarchism 7, 8 (Freedom Press, 1997).; International Institute for Sustainable Development [IISD], Chipko Movement, India, http://www.iisd.org/50comm/commdb/desc/d07.htm (last visited Nov. 10, 2009).149 IISD, supra note 147.150 D. Jane Pratt, Democratic and Decentralized Institutions for Sustainability in Mountains, in Key Issues in Mountain Areas 149, 154 (Price, Jansky & Iatsenia eds., United Nations University Press, 2004). Page 43 of 233 Copyright ©2010 by Elaine Hsiao
  • 44. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis Draft 1 17 July 2010 Page 44 of 233 Copyright ©2010 by Elaine Hsiao
  • 45. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 CHAPTER II First Generation Peace Parks: Prologue for the Future“Conservation is a state of harmony between man and land.”- Aldo Leopold, The Land Ethic in A Sand County Almanac (1949)151 Although experiences with transboundary peace parks around the world is relatively limited,there are elements which can be distilled from existing cases to fashion a model of participatorymanagement for transboundary mountain ecosystems, communities and their governments. Theappreciation and sustainable use of nature can be integrated with the social and economic well-being ofthe people who live within it when based upon a framework for transboundary collaborativeconservation. Protected areas are not merely nature sans humanity as it was largely perceived to be atthe time of creation of the worlds first national park, Yellowstone National Park in the U.S. (1872). 152Nor is it meant to restrict communities to a life of mere subsistence (the minimum, as of food andshelter, necessary to support life) in perpetuity. 153 The right to sustainable development demandsmore.154 To understand how humans and nature can attain a harmonious relationship, its necessary tointegrate park land sustainable development and peaceful relations with neighboring States. Thischapter explores the practice among States or nations that show what has been done to set a precedencefor a more systematic application of these practices and secondly, looks to their potential developmentbased on that foundation. As the UN Commission on Environment and Development (famously known as the BrundtlandCommission) noted in its report, “Our Common Future,”: Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts:151Aldo Leopold, A Sand County Almanac with Essays on Conservation 173 (Kenneth Brower & Michael Sewell eds., Oxford University Press, 2001).152Yellowstone National Park, 16 U.S.C.A. §21 (1872).153Merriam-Websters Dictionary, http://www.merriam-webster.com/dictionary/subsistence (last visited Nov. 15, 2009).154Protected areas are by definition territories subject to restrictions on development, where development is allowed only insofar as it comports with the biological and cultural resource and ecological conservation goals of the areas designation. Limitations on development can range from no development, or absolute preservation, to sustainable multiple-use extraction, but where activities are allowed, the conservation goals necessarily override. Thus, the usual debate as to whether or not sustainable development is a more politically correct way of saying business as usual, or whether or not it is a good policy to be promoted does not apply equally to this discussion on peace parks. The right to sustainable development in the context of peace parks is better viewed as a right to participate in peace park governance and a right to equal access and benefits sharing. Page 45 of 233 Copyright ©2010 by Elaine Hsiao
  • 46. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 • the concept of needs, in particular the essential needs of the worlds poor, to which overriding priority should be given; and • the idea of limitations imposed by the state of technology and social organization on the environments ability to meet present and future needs.The concept of sustainability was elaborated in the Rio Declaration on Environment and Developmentand its implementation plan, Agenda 21.155 Agenda 21 and the series of global summits on sustainabledevelopment that followed (e.g., the Copenhagen Summit on Social Development in 1993, the CairoSummit on Population in 1994, the World Summit on Sustainable Development in 2002) set forth amulti-pronged approach to sustainable development that focuses on three pillars: (1) conservation, (2)social development, and (3) economic development.156 These three pillars are inherently intertwined,integrated, interdependent and interrelated. Conservation itself is a term that encapsulates thepreservation, management and protection of ecological as well as cultural resources.157 Experience tellsus that we cannot confront conservation issues without also addressing the underlying factors thatthreaten its success, such as poverty, economic development and conflict. This thesis seeks to supportthe implementation and proliferation of peace parks as a practicable process for developing a moreharmonious relationship between humans and nature. The interpretation that wilderness is “an area where the earth and its community of life areuntrammeled by man, where man himself is a visitor who does not remain,” can be harmful to its long-155Salient principles of the Rio Declaration on Environment and Development include the following: Principle 1: Human beings are at the centre of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature. Principle 3: The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. Principle 4: In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. Principle 5: All States and all people shall cooperate in the essential task of eradicating poverty as an indispensable requirement for sustainable development, in order to decrease the disparities in standards of living and better meet the needs of the majority of the people of the world. Principle 22: Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States shall recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development. Rio Declaration on Environment and Development [hereinafter Rio Declaration], June 13, 1992, U.N. Doc. A/CONF.151/26, 31 I.L.M. 874.156See David Hunter, James Salzman & Durwood Zaelke, International Environmental Law and Policy 200 (Foundation Press 3d ed., 2007).157Encarta World English Dictionary (Microsoft Corporation, 1999), cited in Mark Dowie, Conservation Refugees: The Hundred-Year Conflict Between Global Conservation and Native Peoples xi (2009) (Conservation: con·ser·va·tion n. 1. the preservation, management, and care of natural and cultural resources. 2. the keeping or protecting of something from change, loss, or damage). Page 46 of 233 Copyright ©2010 by Elaine Hsiao
  • 47. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 158established human inhabitants as well as surrounding environs. In Yellowstone, the national militarywas deployed to execute a campaign of violent expulsion and slaughter of Shoshone and other nativetribes in the false name of conservation. 159 Unfortunately, this paradigm for protected areasestablishment has been exported and replicated abroad with disastrous effect. Parks were created inAfrica by colonial governments to preserve wildlife for gaming purposes, without much concern fornative peoples and their relationship to nature, pushing them out of their traditional lands and assumingthat they could be easily resettled. In Uganda, thousands of highland forest-dependent Batwa pygmieswere exiled subsequent to the creation of Mgahinga and Bwindi Impenetrable National Parks in 1991.160 As landless forest-dependent peoples, they are now forced to squat in neighboring lands where theyare persecuted and cut off from access to the forest resources that previously sustained them. Theyhave not assimilated well into these communities and have struggled to obtain access to livelihoods,lands and resources.161 Similar examples of how governments used conservation as a justification forexpelling human communities has occurred on all major human-occupied continents and has beendocumented by Mark Dowie in “Conservation Refugees.”162 Displacement of peoples can augment pressures or tensions in vulnerable natural areas and ifpushed to the extreme can result in violent conflict. Parks often displaced local populations, pushingmarginalized peoples into already densely populated neighboring communities, where they mustcompete at a disadvantage for scarce natural resources. Competition and access to scarce naturalresources can play a very negative role in conflict between humans. In Uganda, the Batwa have beenpushed into some of the most densely populated lands in the world, housing up to 600-700 people persquare kilometer.163 This is at least twice the population density of Rwanda, which was around 290-422158National Wilderness Preservation System, 16 U.S.C.A. §1131 (1964).; See Robert L. Arnberger, Living Cultures – Living Parks in Alaska: Considering the Reconnection of Native Peoples to their Cultural Landscapes in Parks and Protected Areas 94 (Alan Watson & Janet Sproull eds., U.S. Department of Agriculture, Forest Service and Rocky Mountain Research Station, 2003).159Marcus Colchester, Beyond “Participation”: Indigenous Peoples, Biological Diversity Conservation and Protected Area Management, 47 Unasylva, March 1996, available at http://www.fao.org/docrep/w1033E/w1033e08.htm (last visited Nov. 14, 2009).160See Penninah Zaninka, The Impact of (Forest) Nature Conservation on Indigenous Peoples: the Batwa of South-Western Uganda, A Case Study of the Mgahinga and Bwindi Impenetrable Forest Conservation Trust (2001).; International Work Group for Indigenous Affairs, The Indigenous World 2009, at 484-486 (Kathrin Wessendorf ed., IWGIA, 2009).161A.J. Plumptre, A. Kayitare, H. Rainer, M. Gray, I. Munanura, N. Barakabuya, S. Asuma, M. Sivha & A. Namara, The Socio-Economic Status of People Living Near Protected Areas in the Central Albertine Rift 28-29 (Albertine Rift Technical Reports Vol. 4, 2004).162Two hundred delegates at the International Forum on Indigenous Mapping held in Vancouver, Canada in 2004, signed a declaration stating that “conservation has become the number one threat to indigenous territories.” In 2005, the International Land Coalition highlighted the negative effect of conservation on landless people and later listed the “appropriation of common property for conservation” as one of the top five “threats to common -property regimes.” See Mark Dowie, Conservation Refugees: The Hundred-Year Conflict Between Global Conservation and Native Peoples xvii-xviii (2009).163A. J. Plumptre et al., supra note 160, at 9. Page 47 of 233 Copyright ©2010 by Elaine Hsiao
  • 48. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010people per square kilometer in 1992. An aerial photo of Virunga and Volcanoes National Parks bordersin the DRC and Rwanda respectively, indicates quite starkly the effects of high population pressure onnatural resources; the forest ends where the protection ends. Densely populated lands coupled withenvironmental degradation or scarcity is considered by scholars like Thomas Homer-Dixon to be a redflag for environmental security related conflict. Studies by Homer-Dixon and colleagues argue thatthese are some of the aggravating factors leading to armed conflict (e.g., the violent genocide thatdevastated Rwanda in 1994).164 Resettlement-based protected area designation can be completelyunsustainable. Conservation in the twentieth century recognized that conservation at the cost of expellinghuman communities was not desirable. New models were crafted to allow for indigenous or traditionalpopulations to remain on their lands and to continue some level of sustainable use of the naturalresources. In Alaska, Native Americans and their lands are governed by the Alaska National InterestLands Conservation Act (ANILCA), which is based on this new paradigm. 165 Unfortunately, underANILCA, Alaskan Natives are still only offered a handful of very limited options. They may opt forone of three income sources: (1) eco-tourism, (2) local hires, or (3) oil and mineral extraction inspecified areas.166 Alternatively, they may opt for a life of subsistence. Given the Secretary orAdministrator of the Environmental Protection Agencys (U.S. EPA) short list of narrowly definedpermissible subsistence activities and the limited Subsistence Resource Regions where such activitiesare allowed,167 it is no wonder the much less restrictive corporate natural resource extraction optionappears so attractive even to Alaska Natives who have built and grown their cultures and traditions inclose unity with the ecological and seasonal rhythms of their unique Arctic environments. If a community opts for subsistence, refusing to take part in destructive corporate extractiveindustries, there are few income sources that might bring in enough revenue to support schools or thecultural and social services that might be expected or provided by a society that believes infundamental rights to education, human dignity, cultural heritage and self-determination. NativeAmerican tribes have been heavily divided by this difficult choice between extractive corporations andregulated subsistence. Their traditional social structures have been tested and in some cases brokendown as a result. When peoples full and equitable participation is not recognized or supported in landconservation and sustainable natural resource management, capitalism and exploitation prevail todestroy lands and cultures. Communities living in protected areas or fragile environments should have other alternatives toa choice between corporate extraction and environmental degradation or subsistence limited by outside164Valerie Percival & Thomas Homer-Dixon, Environmental Scarcity and Violent Conflict: The Case of Rwanda 206, in Ecoviolence: Links Among Environment, Population and Security (Thomas Homer-Dixon & Jessica Blitt eds., Rowman & Littlefield, 1998).165Alaska National Interest Lands Conservation Act, 16 U.S.C.A. §3101 et seq. (1980).166Id. at §3198, 3148-3150.; Deborah Williams, ANILCA: A Different Legal Framework for Managing the Extraordinary National Park Units of the Last Frontier, 74 Denv. U. L. Rev. 859 (1997)167Alaska National Interest Lands Conservation Act, 16 U.S.C.A. §3115(a)(3)(A) (1980). Page 48 of 233 Copyright ©2010 by Elaine Hsiao
  • 49. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010authorities. In the Arctic region, full exercise of indigenous and human rights could be fosteredthrough the revival and implementation of the latent but still ever so relevant Beringian HeritageInternational Park introduced just after the Cold War in the late 1980s. 168 In an inward looking attemptto deal with domestic Native American land use and natural resource issues, the crafting and adoptionof ANILCA failed to consider the long history of cultural exchange, as well as species exchange ofmigratory species like the porcupine caribou and the polar bear, across the Bering Strait. ANILCA isnot sufficiently participatory on two very critical points – (1) the effective and meaningful participationof all Alaska Natives and (2) the transboundary participation of the communities and governments ofother Range States of migratory species which characterize the region. Large-range mammals, such asthe porcupine caribou and polar bear, are protected under international environmental agreementsbetween the U.S. and its Bering Strait neighbors (Russia and Canada). 169 Formalization andimplementation of the Beringia International Park would accord with international environmentalprinciples in these treaties supporting holistic landscape conservation of species and their habitatsacross their natural range, as well as those found in MEAs like the 1979 Convention on theConservation of Migratory Species of Wild Animals (CMS). 170 A successful land conservation act inAlaska needs to be much more inclusive and outward-looking. A peace park offers a multi-use protected area model that integrates protection of both flora andfauna, as well as the human populations that co-exist within them, throughout their habitat. Thesimultaneous objectives of peace parks – conservation and cooperation – provide a vision ofharmonious integration of peoples and nature. Once a transboundary peace park is identified,stakeholders can elaborate environmental management schemes based on their traditional knowledgeand local sustainability practices to achieve preservation, regeneration, restoration and conservation ofbiological and cultural diversity. Peace parks also require an alternative to violent conflict and promotemore civilized non-violent dispute resolution processes. It is incumbent that environmentalstewardship seek pacific methods of collaborative dispute resolution for conflict of all kinds, becauseas Principle 25 of the Rio Declaration poignantly stresses: “Peace, development and environmental168See R.A. Mittermeier et al., supra note 14, at 45-46 (the idea for the park arose out of discussions on “Conservation and Management of Natural and Cultural Heritage” between the U.S. and Soviet Union under the auspices of an environmental working group. The idea was introduced to local communities in both northwestern Alaska and the Chukotka Peninsula of Russia in 1989 and in 1990, the two presidents (Bush and Gorbachev) announced the creation of an international park across the Bering Strait. The international park was never actually implemented, but the two countries continue to build cross-cultural and cross-border ties through their Shared Beringia Heritage Program).; See also IUCN, Bering Land Bridge World Heritage Site, USSR and Russia (IUCN, General Assembly Recommendation 17.57, 1988)(Recommendation adopted by the General Assembly of the IUCN supporting designation of bi-national parks and reserves to support coordinated management of unique resources and possible international recognition as a World Heritage Site).169Agreement Between the Government of Canada and the Government of The United States of America on the Conservation of the Porcupine Caribou Herd, U.S.-Can., July 17, 1987, 27 I.L.M. 273.; Agreement on the Conservation of Polar Bears, Nov. 15, 1973, 13 I.L.M. 13.170 Convention on the Conservation of Migratory Species of Wild Animals [hereinafter Convention on Migratory Species], art. II-III, June 23, 1979, 1651 U.N.T.S. 333. Page 49 of 233 Copyright ©2010 by Elaine Hsiao
  • 50. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 171protection are interdependent and indivisible.” The peace park model is particularly applicable to mountain forest regions. It is critical thatsufficient mountain forest coverage is protected to serve as corridors and sanctuaries for biological andcultural diversity in mountain forests, particularly for the purposes of climate change resilience andadaptation. Such large-scale conservation necessitates regional cooperation across borders. Bycreating transboundary peace parks in mountain forest ecoregions, we demarcate clearly definedpriority areas for nature conservation, which will require extensive studies and on-going monitoringand reporting. Such exercises could contribute significantly to the current gaping absence ofinformation on these ecoregions and their communities. Furthermore, mountain forest areas linked toviolent conflict would benefit especially from the mandate for pacific conflict resolution. Encouragingparticipating States (those sharing a transboundary peace park) to collaborate in their border securityor law enforcement activities in the peace park territory could help to mitigate border disputes thatwould threaten the protected mountain forests, as well as better safeguard these areas from any violentconflict that does arise.172 The three peace parks selected for case study in this chapter provide examples from NorthAmerica, Central America and Central Africa of tangible elaborations upon general peace parkconcepts. The case studies provide an overview of the history, establishment and basic managementframework for three existing peace parks: (1) Waterton-Glacier International Peace Park betweenCanada and the U.S., (2) The Central Albertine Rift Transfrontier Protected Area Network between theDemocratic Republic of Congo, Rwanda and Uganda, and (3) Parque Internacional La Amistadbetween Costa Rica and Panama. These particular peace parks were chosen to demonstrate certaincommonalities, as well as unique differences. Firstly, the case studies were limited to transboundarymountain forest ecoregions that exhibit comparable biological, geological and hydrologicalcharacteristics. Then they were selected for the lessons they can provide a global community tendingtowards expanding networks of transboundary protected areas for peace and collaboration. The threepeace parks were established in different periods of peace or conflict, are managed differently and haveinvolved civil society, NGOs and the international community to varying degrees. In studying thehistory and legal frameworks of these three parks, we can better understand the experiences of peacepark concepts in practice and thus, strive towards a universal definition of peace parks and bestpractices for their establishment and management.171 Rio Declaration, supra note 154.; Also of note are Principles 24 and 26 of the Rio Declaration, provided below: Principle 24: Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further dvelopment, as necessary. Principle 26: States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations.172Leo Braack, Trevor Sandwith, David Peddle & Thomas Petermann, Security Considerations in the Planning and Management of Transboundary Conservation Areas (IUCN, 2006). Page 50 of 233 Copyright ©2010 by Elaine Hsiao
  • 51. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Fundamentals of a peace park: definition Transboundary peace parks (TBPPs) have been referred to under a variety of different names.First of all, the terms transboundary and transfrontier are often used interchangeably. Transboundary(or transfrontier) does not have to cross international boundaries, it is sufficient that it cross“neighbouring sub-national jurisdictions, including autonomous regions or provinces.” 173 Sometimesthe presence of an international border is specifically implicated by the use of terms such asinternational or binational (if between two States). There are times when no qualifier is used at all.However, this can be confusing as some non-transboundary peace parks have been established forpurely symbolic reasons to communicate an aspiration for peace. These have little, if anything, to dowith conservation of biodiversity or environmental peace-building through cooperation. For example,the Hiroshima Memorial Peace Park, created to memorialize the nuclear attacks on Japan in 1945.Although the symbolic message of such peace parks is indeed important, this thesis focuses on peaceparks as a model of transboundary conservation. Thus, any reference to peace parks made hereindicates only those with transboundary and ecological elements. The IUCN, which focuses on peaceparks with a transboundary component, refers to peace parks as transboundary protected areas (TBPAs)for peace and co-operation.174 TBPAs (whether designated for peace or not) in this context are alsoreferred to as transboundary conservation areas (TBCAs) or transfrontier conservation areas (TFCAs). Box 2.1 Peace Park Nomenclature A list of terminology commonly used when referring to transboundary peace parks. International peace park Binational peace park Transboundary peace park (TBPP) Transfrontier peace park (TFPP) Transboundary protected area (TBPA) for peace and cooperation Transfrontier protected area (TFPA) for peace and cooperation Transboundary conservation area (TBCA) Transfrontier conservation area (TFCA) Park for Peace International Park for Peace Despite the potential distraction of inconsistent terminology describing transboundary peaceparks, there seems to be emerging consensus regarding its definition. In 1997, the IUCN began a Parksfor Peace initiative that sought to promote international cooperative conservation in order to address the173 Sandwith et al., supra note 19, at 3.174 See id. Page 51 of 233 Copyright ©2010 by Elaine Hsiao
  • 52. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010interrelated challenges of holistic protection of flora and fauna, conflict prevention, resolution and post-conflict reconciliation, as well as sustainable regional development.175 Through this process, itsTransboundary Protected Areas Task Force has posited a working definition for peace parks thatrepresents the emergence of a consensus definition:176 Parks for Peace are transboundary protected areas that are formally dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and to the promotion of peace and co-operation.177Thus, peace parks as understood by the IUCN are a sub-category or type of TBPA. A TBPA, as definedby the IUCN, is: An area of land and/or sea that straddles one or more boundaries between states, sub- national units such as provinces and regions, autonomous areas and/or areas beyond the limits of national sovereignty or jurisdiction, whose constituent parts are especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and managed co-operatively through legal or other effective means.178This description of TBPAs integrates an explanation of what constitutes a transboundary area with theIUCN definition of a protected area (PA): A clearly defined geographical space, recognised, dedicated and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values.179In sum, peace parks are a protected area classification that integrates peace and cooperativemanagement of ecosystems or natural and cultural resources across jurisdictional boundaries. They areunique in that they emphasize “a clear biodiversity objective, a clear peace objective, and co-operationbetween at least two countries or sub-national jurisdiction.”180 Box 2.2 Elements of a Peace Park175 Id. at 1.176 Id. at 2.177 Id. at 3.178 Sandwith et al., supra note 19 at 3.179 IUCN, Guidelines for Applying Protected Area Categories 8 (Niger Dudley ed., IUCN 2008).180 Id. at 4. Page 52 of 233 Copyright ©2010 by Elaine Hsiao
  • 53. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Transboundary peace park = PA + TB + Peace and Cooperation PA = Protected Area TB = Transboundary A few other institutions have contributed definitional elements towards a greater understandingof peace parks. Gerardo Budowski of the United Nations Affiliated University for Peace has argued forthe recognition of peace parks “because they were well-known scenes of past conflicts.” 181 He hasargued that a peace park need not be transboundary and that instead, its recognition as such should bebased on the territorys “significant conflictive past.” 182 On this basis, peace parks can be establishedsolely for symbolic purposes. The Peace Parks Foundation in South Africa has also opted to use a lessrestrictive definition of peace parks. In fact, the Peace Parks Foundation typically uses the termtransfrontier conservation area (TFCA) interchangeably with peace park.183 Its meaning is defined inthe South African Development Communitys (SADC) 1999 Protocol on Wildlife Conservation andLaw Enforcement as: "Transfrontier conservation area" means the area or the component of a large ecological region that straddles the boundaries of two or more countries, encompassing one or more protected areas, as well as multiple resources use areas.184The Peace Parks Foundation has not felt a need to distinguish a TFCA from one which has an explicitpeace and cooperation mandate because in its experience these have been inherent components oftransboundary conservation in the region.185 A call to supplement the IUCNs 2001 definition of peace parks was present in the 2003 WorldParks Congress in Durban, South Africa. 186 There, organizations such as the World Wildlife Fund, TheNature Conservancy and the International Tropical Timber Organization (ITTO), argued for a broaderunderstanding of transboundary peace parks by noting that not all PAs that could benefit fromtransboundary collaborative management abut borders or are adjoining.187 The IUCN responded totheir concern by collaborating with these organizations and others in a series of workshops that hashelped to further build upon the definition of peace parks. For example, fives types of TBPAs were181 Gerardo Budowski, Peace Through Parks, 14 Our Planet 30, 30 (UNEP, ).182Gerardo Budowski, Emeritus Professor, United Nations University for Peace, Personal Communication, quoted in Sandwith et al., supra note 19, at 3.183Peace Parks Foundation, What are Peace Parks/TFCAs? (2008), http://www.peaceparks.org/Content_1020000000_Peace+Parks.htm.184South African Development Community Protocol on Wildlife Conservation and Law Enforcement, Aug. 18, 1999,available at www.internationalwildlifelaw.org/SADCProtocol.pdf (last visited July 16, 2010).185Mittermeier et al., supra note 14, at 36.186Saleem Ali, Introduction: A Natural Connection between Ecology and Peace?, in Peace Parks: Conservation and Conflict Resolution 1, 7 (Saleem Ali ed., Massachusetts Institute of Technology, 2007).187Mittermeier et al., supra note 14, at 34-36. Page 53 of 233 Copyright ©2010 by Elaine Hsiao
  • 54. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010identified by the IUCN and ITTO during a jointly organized workshop on “Increasing the Effectivenessof TBCAs in Tropical Forests” held in Ubon Ratchathani, Thailand in February 2003. 188 These arelisted in a Global Transboundary Protected Areas Network189 guidance on TBPA typology:190 • Two or more contiguous protected areas across a national boundary; • A cluster of protected areas and the intervening land (buffer zones); • A cluster of separated protected areas without intervening land: protected areas that are geographically separated but share common ecology or problems, and usually have some interchange between species; • A trans-border area including proposed protected areas: protected areas in one country or region, with the hope of extending protection across the border, but without any formal agreement (considered to be a transitional arrangement); • A protected area in one country aided by sympathetic land use over the border.Any one of the above formulations would satisfy the IUCNs definition of a peace park so long as itmaintains the objectives of conservation and peace within a transboundary cooperatively managednatural area. The clarifications above of different kinds of transboundary conservation initiatives andpeace parks does not change the previous IUCN definition of a peace park, it merely elaborates on thetypology of TBPAs that could potentially be categorized as a peace park. In a 2005 publication, “Transboundary Conservation: A New Vision for Protected Areas,” co-authored by members of the IUCN Transboundary Protected Areas Task Force, the authors noted thatpeace parks are a type of transboundary conservation initiative with “the explicit objective of securingor maintaining peace during and after armed conflict, or of commemorating past warfare.” 191Furthermore, they acknowledged that transboundary conservation initiatives could be manifested in avariety of forms: 1. Transboundary Protected Areas (TBPAs): protected areas that adjoin across an international boundary, and that involve cooperative management; 2. Transboundary Conservation (and Development) Areas (TBCAs): protected areas may be, but are not necessarily, a feature of the regional landscape, but where conservation and sustainable development goals have been asserted within a framework of cooperative management;188Nigel Dudley, A Typology of Transboundary Protected Areas: Different Approaches for Different Needs (IUCN, 2007), available at http://www.tbpa.net/issues_04.htm (last visited Dec. 6, 2009).189The Global Transboundary Protected Areas Network is an IUCN WCPA coordinated online clearinghouse providing databases on TBPAs around the world and TBPA related publications, http://www.tbpa.net/index.html.190Nigel Dudley, supra note 187.191Mittermeier et al., supra note 14, at 36. Page 54 of 233 Copyright ©2010 by Elaine Hsiao
  • 55. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 3. Transboundary Migratory Corridors: situations in which the habitat needs of species require the persistence of areas in several countries; 4. Transboundary World Heritage Site: where protected areas on either side of an international boundary fall collectively into the designation of the area as a World Heritage Site; 5. Transboundary Biosphere Reserve: where areas on either side of an international boundary fall within a biosphere reserve designation under UNESCOs Man and the Biosphere Programme.192Enumeration of the various TBPA typology listed above seems to reflect acceptance and recognition oftransboundary conservation in all of its colors and forms, from de facto to de jure. This is important tonote now as it will be discussed further in Chapter IV on the Patchwork Peace Park Model.Objectives and benefits of a peace park Over the years, efforts to better define what transboundary peace parks are have directlycorrelated with our growing understanding of the need for and benefits of establishing peace parksaround the world. The reasons underlying peace parks are essentially as their three main objectives orelements (conservation, peace and cooperation) imply: (1) to provide the best possible physicalcircumstances for conservation of biological diversity based on a more holistic ecoregional orlandscape approach, (2) to coordinate management efforts across the protected area(s) and relevantbuffer zones so that they are most effective, and (3) to build relations across borders, to supportpeaceful resolution of conflicts and to prevent violent conflict, to mitigate the harmful impacts ofconflict on the environment, and to provide an opportunity for post-conflict environmentalpeacebuilding. Experience indicates that these three elements are interrelated, interdependent and moreeasily achieved when integrated. Conservation of biological diversity is best guaranteed when it is based on an ecoregional orlandscape approach. Habitat size is very much directly correlated with natures ability to supporthealthy populations of flora and fauna, ensuring species viability and genetic diversity for generationsto come.193 Some species, particularly large mammals,194 require large ranges of habitat and are morelikely to become threatened, endangered or extinct when their range habitat is destroyed, degraded orfragmented by the impacts of human communities.195 Sustainable extraction of natural resources and192Id.193Ana S. L. Rodrigues & Kevin J. Gaston, How Large do Reserve Networks Need to Be?, 4 Ecology Letters 602 (2001).; W. D. Newmark, Extinction of Mammal Populations in Western North American National Parks, 9 Conservation Biology 512 (1995).194E.g., Eric W. Sanderson et al., The Ecological Future of the North American Bison: Conceiving Long-Term, Large-Scale Conservation of Wildlife, 22 Conservation Biology 252 (2008).195S.A. Parks and A. H. Harcourt, Reserve Size, Local Human Density, and Mammalian Extinctions in U.S. Protected Page 55 of 233 Copyright ©2010 by Elaine Hsiao
  • 56. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 196full enjoyment of ecosystem services requires sufficiently large protected areas. Larger-scaleconservation also provides the benefit of allowing for greater resilience to environmental degradation(whether natural or anthropogenic).197 The adaptability of biological diversity and ecosystems isincredibly important when considering the impacts of climate change upon all living systems. In orderto allow opportunity for the most optimistic of scenarios, whereby we manage to protect biodiversity,continue to extract natural resources and adapt to climate change, we must begin to see conservation ofecosystems at a landscape or ecoregional level.198 Holistic conservation through transboundary protected areas must be coupled with aparticipatory and adaptive co-management regime. 199 Protected area governance is more effectivewhen processes involve meaningful participation. 200 If the process for developing managementframeworks is not sufficiently participatory, the resulting rules codified in the management plan mayhave less authority or acceptance by marginalized stakeholders, which may provoke human-protectedarea conflicts.201 Effective conservation requires the harmonization of human activities with protectedarea objectives on two levels: (1) within the protected area, as well as (2) bordering and outside of theprotected area. Human communities inhabiting a protected area must not hinder or violate the goals ofthe protected area (e.g., poaching, illegal and/or unsustainable natural resource extraction, landconversion). Likewise, human communities living near or outside of protected areas must refrain fromparticipating in activities that undermine protections within the protected area (e.g., trafficking ofnatural resources, perpetuating anthropogenic climate change). Permissible and proscribed activitiesmay be governed by a framework of rules and regulations crafted into a protected area managementplan.202 It is important that the participation of communities in environmental stewardship inside and Areas, 16 Conservation Biology 800 (2002)(extinction of mammalian species more likely in U.S. protected areas surrounded by higher human population densities).196See Carlos A. Peres, Why We Need Megareserves in Amazonia, 19 Conservation Biology 728 (2005).; Carlos A. Peres, Synergistic Effects of Subsistence Hunting and Habitat Fragmentation on Amazonian Forest Vertebrates, 15 Conservation Biology 1490 (2001).197Luigi Maiorano, Alessandra Falcucci & Luigi Boitani, Size-Dependent Resistance of Protected Areas to Land-Use Change, 275 Proc. R. Soc. B 1297 (2008).; A. Bruner, R. E. Gullison, R. E. Rice, & G. A. B. da Fonseca, Effectiveness of Parks in Protecting Tropical Biodiversity, 291 Science 125 (2001).198See Graham Bennett & Piet Wit, The Development and Application of Ecological Networks: A Review of Proposals, Plans and Programmes (Advice and Research for Development and Environment [AIDEnvironment] & IUCN, 2001).199E.g. Charles Curtin, Integrating Landscape and Ecosystems Approaches through Science-Based Collaborative Conservation, 21 Conservation Biology 1117 (2007).200Id.201UN Development Programme [UNDP], UNEP, World Bank & World Resources Institute, World Resources 2002-2004: Decisions for the Earth: Balance, Voice and Power 29 (WRI 2003).202If the management plan is still in its nascent stages and is vague on prescribing specific activities or mandating particular conservation principles, or the protected area is relatively new and a management plan does not yet exist, the legal form establishing the protected area or TBPA should at the very least identify the relevant entity/entities and their authority to set such rules and regulations within the protected area, requiring them to promulgate the necessary rules and regulations by a set date. In the meantime, activities within the protected area should be required to broadly conform with the objectives enumerated for protecting the area. Page 56 of 233 Copyright ©2010 by Elaine Hsiao
  • 57. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 203surrounding protected areas is on-going and adaptive to fluctuating circumstances. This can help toensure the protected areas resilience to environmental change (including climate change) and socialdynamics (including conflict).204 Just as nature evolves, so must environmental stewardship regimes. Mandating peace and non-violent conflict resolution in transboundary conservation canstrengthen the resilience of nature to conflict. Peace parks promote a culture of peace and non-violentconflict resolution that can head off violent conflicts in the first instance. However, should conflictsarise, a proper management regime can be better prepared to mitigate the impacts of war or the role ofthe environment in aggravating conflicts. Peace parks can also be integrated into the peace-makingprocess, increasing the chances for a durable and just peace and thereby protecting the protected areafrom relapses back into conflict. The peace objective of a peace park demonstrates the interrelated andinterdependent nature of the all three peace park objectives. First and foremost, a peace park mandates peaceful and non-violent resolution of conflictswithin its boundaries. A 2009 UNEP report highlights three scenarios in which natural resourcescontribute to the outbreak of conflict 205 and notes that the commonality shared by all three is the“inability of weak states to resolve resource-based tensions peacefully and equitably.” 206 This makesthe environmental peacebuilding capacity developed through peace parks particularly relevant. Inorder to optimize the peacebuilding potential of collaborative conservation in TBPAs, the IUCN in itsGood Practice Guidelines for TBPAs for peace and cooperation call for early engagement ofcommunities207 to discuss any possible conflicts208 and facilitate conflict resolution,209 supportingactivities which may have a healing effect for communities who have suffered from armed conflict 210 or203Grazia Borrini-Feyerabend, Jim Johnston & Diane Pansky, Governance of Protected Areas, in Michael Lockwood, Graeme L. Worboys & Ashish Kothari, Protected Areas Management: A Global Guide 116, 144 (Lockwood, Worboys & Kothari eds., Earthscan, 2006).204Id.205Natural resource driven conflicts can arise: (1) “over the fair apportioning of wealth derived from high value extractive resources” combined with acute poverty or lack of alternative livelihoods; (2) “over the direct use of scarce resources” oftentimes aggravated by demographic factors and natural disasters; or (3) when economies are “dependent on the export of a narrow set of primary commodities” and governments tend to be politically fragile and removed from the needs of their constituents (i.e., the “resource curse”). UNEP, From Conflict to Peacebuilding: The Role of Natural Resources and the Environment 8-11(Silja Halle ed., 2009).206Id. at 11.207Sandwith et al., supra note 19, at 20 (3.2.1 Engage early in discussions with indigenous peoples and local communities inhabiting all jurisdictional zones of the TBPA, or using their resources).208Id. (3.2.4 Identify as soon as possible any actual or potential disputes among the communities in the different jurisdictions, as well as between them and conservation objectives).209Id. (3.2.4 Support and facilitate conflict management processes whenever necessary. 3.2.6 Strive to achieve support from decision-makers in all jurisdictions concerned, for prompt and lasting solutions to any dispute. It is important to ensure that relevant international and regional human rights and environmental standards should be complied with, as this may facilitate the resolution of disputes).210Id. (3.2.13 Support activities that could have a healing effect on the relationships between communities which have suffered from armed conflict in the past). Page 57 of 233 Copyright ©2010 by Elaine Hsiao
  • 58. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 211which build trust and partnership between communities. Engaging in these practices encouragescommunities to resolve their resource based tensions in collaborative ways that can prevent an extremeresort to violence. Strong civil organizations directly participating in collaborative conservation make theprotected area and the communities themselves more resilient to armed conflict. In Nepal, when theMaoist insurgency between 1996-2006 wreaked havoc on its mountain forests and protected areas, 212interestingly, some places managed to survive Maoist takeovers and exploitation, with a few evencontinuing to hold regular meetings.213 These community managed protected areas or forests governedby community forestry groups have been studied by Nabin Baral in his doctoral dissertation, whichreveals an important correlation between social, human and natural capital and community as well asprotected area resilience against the insurgency. 214 Community management groups with long-standingrelationships had built the trust and experiences needed to collaboratively confront conflict relatedthreats to their natural resources. Thus the peacebuilding and and conflict resilience capacity of a peacepark is very much related to the nature and presence of cooperation between stakeholders. A co-management framework for a peace park can also foster collaboration in border securitybetween security personnel, law enforcement officers and protected area authorities on either sides ofthe border(s). The presence of a peace park is likely to bring additional activity (e.g., commercial,recreational) to a border area, which governments see as a national security zone. Early considerationof transboundary threats and weak-points by protected area managers along with security and lawenforcement personnel can ensure that the “opening” of a protected area border area does not becomemaliciously exploited.215 Joint task forces can set guidelines and protocols, as well as facilitate securityresponses that ensure effective conservation, particularly when conflicts do arise. 216 This can includefacilitating communication to stem illicit exploitation or abuse of natural resources in armed conflict 217and training security, police and protected area personnel on international law regarding theenvironment in conflict.218 Task forces should consult local community members early on. Mobile,211Id. (3.2.12 Implement activities that further understanding and co-operation among the communities concerned, such as cultural events, market days and joint projects.)212Nabin Bharal & Joel T. Heinen, The Maoist Peoples War and Conservation in Nepal, 24 Politics and the Life Sciences 2 (2006).213Nabin Bharal, Institutional Resilience of Community-based Conservation to the Maoist Insurgency in Nepal 3 (Nov. 2, 2009) (unpublished Ph.D. dissertation, Virginia Polytech Institute and State University) (on file with author).214Id. at 67-72.215See Braack et al., supra note 171.216See Id.217Id.; Geoffrey D. Dabelko, From Threat to Opportunity: Exploiting Environmental Pathways to Peace 3-4 (2006).218Training on the norms and principles governing protection of the environment during armed conflict should include at a minimum relevant sections of Protocols I and III of the Geneva Conventions, ENMOD and the ICRC Guidelines on Military Manuals. As security personnel around the world adopt these guidelines into their national manuals, instructions or rules of engagement, these principles and norms will set the bar as a minimal level of objective knowledge of the potential widespread, long-term and severe effects of certain acts committed against the environment in times of conflict (e.g., use of incendiary bombs in forest areas). Mark A. Drumbl, Waging War Against the World: Page 58 of 233 Copyright ©2010 by Elaine Hsiao
  • 59. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010indigenous or traditional populations living on or near borders may have historically passed freelyacross the border, making the sudden appearance of armed forces that prevent them from habitualmovements unwelcome and threatening. However, in providing for the appropriate freedom ofmovement, border security must be able to distinguish between these mobile communities and wildlifetraffickers, for instance. Training local peoples in security and monitoring procedures can assist in thisprocess and strengthen law enforcement against transboundary crimes; local people can usuallyrecognize their own and they can contribute valuable on the ground monitoring and reporting of illicitactivities.219 Local capacity-building can also better prepare communities for emergency responsesarising out of conflict or natural disaster.220 This is also important for climate change adaptation.221 Transboundary collaborative conservation can also play a significant role in peacemakingprocesses, particularly in ensuring that peace negotiations do indeed bring about just peace. Withevermore cruel and destructive innovations in the technology of modern warfare, the environmentalaftermath of violent conflict can easily meet jus in bellum thresholds as widespread, long-lasting andsevere.222 Just peace223 demands consideration and reparation for the environmental consequences ofconflict and neutralization of any roles that natural resources or the environment played in the outbreakor life of the conflict.224 Conflicts related to natural resources are two times as likely to relapse intoconflict again within five years.225 Nevertheless, peace agreements fail to include natural resource andenvironmental matters in three-quarters of the natural-resource affiliated conflicts between 1946 and2006.226 A peace park provides a framework and a forum for diffusing this grave shortcoming, givingthe environment a chance at peace and renewal. The Need to Move from War Crimes to Environmental Crimes, 22 Fordham Intl L.J. 122, 131-132 (1998).219World Resources Institute [WRI], Workshop on Promoting Transparency in the Forest Sector: Best Practices for Detecting Illegal and Destructive Commercial Logging 3, 5-6 (WRI Summary Workshop Report, 2002).220UN International Strategy for Disaster Reduction & UNDP Special Unit for South-South Cooperation, Building Disaster Resilient Communities: Good Practices and Lessons Learned (2007).221Geoff OBrien, Phil OKeefe, Joanne Rose & Ben Wisner, Climate Change and Disaster Management, 30 Disasters 64 (2006).222Protocol Additional to the Geneva Conventions of 12 August 1949 [hereinafter Protocol I], and Relating to the Protection of Victims of International Armed Conflicts, art. 35(3), June 8, 1977, 16 I.L.M. 1391, U.N. Doc. A/32/144 (1977)(prohibiting employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”).; United Nations: Rome Statute of the International Criminal Court, art. 8(2)(b)(iv), July 17, 1998, U.N. Doc. No. A/Conf. 183/9, 37 I.L.M. 999 (hereinafter Rome Statute)(prohibiting as a War Crime, “intentionally [launching] an attack in the knowledge that such attack will cause...widespread, long-term and severe damage to the natural environment”).223See Pierre Allan & Alexis Keller, What is a Just Peace? (Allan & Keller eds., Oxford University Press, 2nd ed., 2008).224UNEP, supra note 204, at 19,225Id. at 11, 19.226Id., citing H. Binningsbø & S. A. Rustad, Resource Conflicts, Resource Management and Post-Conflict Peace (PRIO Working Paper, Uppsala University & International Peace Research Institute, 2008) (only 26 of 137 peace negotiations for natural resource related conflicts between 1946-2006 included some form of natural resource management). Page 59 of 233 Copyright ©2010 by Elaine Hsiao
  • 60. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Additionally, when the tri-prong objectives of a peace park are maintained, local communitiesin or around the park may enjoy a series of socio-economic benefits. Social benefits of an effectivepeace park can be economic and socio-political. Economic benefits range from attracting developmentassistance (i.e., funding from donor organizations or governments) to development of ecotourism thatprovides for sustainable socio-economic development, or even the cheap and/or free enjoyment ofecosystem services. Politically or socially, involvement in peace park management can bringimprovements in environmental governance and strengthen societies in the exercise and practice ofdirect democracy. The benefits of peace and healthy environments (providing a sustainable source of naturalresources and ecosystem services) can be significant for socio-economic development. Peace andstability make for safer and surer investment environments, at least in the minds of those who matter,investors with money. Doing business in conflict zones is costly, complicated and not for everyone.Without active investment and commerce, economies in conflict areas deteriorate further and socio-economic situations worsened. From a few experiences with the use of economic sanctions on nation-states violating international norms, it can be highlighted that it is often the fundamental rights of themost vulnerable and marginalized peoples who suffer the most from economic disruptions and not themisbehaving elites in control of the situation.227 In times of peace and security, however, developmentaid and investment can be safely encouraged to return to an area. Investing in sustainable developmentduring post-conflict peacebuilding has even been perceived as a factor which may help to retain lastingpeace.228 Investments in industries like ecotourism may promote peace,229 but they also requirepeace.230 Tourists do not typically enjoy being in the midst of violent cross-fire and investors do notwant to risk losses on their investments. The stability of the peace park is important to the success ofecotourism just as the success of ecotourism is important to the financial sustainability of the peacepark. Conservation, economic development and peace are better achieved together; one should not bepromoted at the cost of another. Costa Rica has been exemplary in demonstrating such benefits. In the1970s and 1980s when its neighbors found themselves manipulated and torn apart from the inside bycivil and international wars, Costa Rica demilitarized and opted instead to invest in peace andeducation, reforming its environment and development policies to completely reverse negative trendsin deforestation. Its reputation as a place of security and natural beauty brings flocks of newlywed227See Michael P. Malloy, Economic Sanctions and Human Rights: A Delicate Balance, 3 No. 1 Hum. Rts. Brief 12 (1995).; E.g. The Office of the High Commissioner for Human Rights, The Human Rights Impact of Economic Sanctions in Iraq, Background Paper for the Meeting of the Executive Committee on Humanitarian Affairs (Sept. 5, 2000), available at www.casi.org.uk/info/undocs/sanct31.pdf (last visited July 26, 2010).228UNEP, supra note 204, at 22, 28-29.229Nikolas J. Strong-Cvetich & Jason Scorse, Ecotourism in Post-Conflict: A New Tool for Reconciliation? (2007).230E.g. Yakobo Moyini & Berina Uwimbabazi, Analysis of the Economic Significance of Gorilla Tourism in Uganda 32 (International Gorilla Conservation Programme, 2000) (tourism development originally planned in Uganda near its borders with the Democratic Republic of Congo and Rwanda had to be shifted northwards to Bwindi Impenetrable National Park because of conflict on the Rwandan border). Page 60 of 233 Copyright ©2010 by Elaine Hsiao
  • 61. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010couples and eager tourists from all over the world to soak in natural hotsprings, sleep in treehouses,watch birds by day and erupting volcanoes by night, sometimes even planting trees and patrolling seaturtle nesting beaches. Ecotourism has become Costa Ricas most profitable industry. Neighboringcountries now seek to replicate this model and promote investment in the protection of their naturalspaces so as to eradicate poverty across their communities. Strengthening environmental governance in and around a protected area can bring greatertransparency and accountability (particularly regarding law enforcement and governance) as well ascapacity-building and empowerment of local peoples in a manner that strengthens democracy anddecentralization (or subsidiarity).231 However, a productive balance must be reached in co-managementendeavors – one which inspires communities to participate in and benefit directly from the protectionof their natural environments for generations to come without solidifying harmful status quosperpetuating existing inequities that are unfavorable to land conservation. 232 Opportunity and forashould be provided by local and other relevant authorities to disenfranchised peoples so that theirvoices might be heard and concerns acted upon. All peoples must be fully informed and equipped inorder to offer more meaningful input, this is a fundamental tenet of democracy. With greaterparticipation comes greater transparency (which in itself can discourage many harmful practices withinthe protected area) and thus greater accountability (for invidious practices that continue despite).Transparency and accountability can also ensure that the economic benefits of protected areas areshared more equitably and not merely concentrated in the hands of a few outside investors or aminority of powerful elites. All of these social benefits will in turn have positive effects upon the peace park itself. Povertyand limited options for sustainable rural development have been noted to foster harmful environmentalpractices, such as land conversion and illegal extraction of natural resources. Marginalization ordisempowerment of peoples can be sources of conflict between humans, as well as humans andprotected areas. Conversely, poverty eradication and capacity building of disenfranchised peoplescould prevent or reverse harmful practices and impacts, allowing local communities to play a muchmore positive role in transboundary conservation. An adaptive approach to collaboration andstewardship can ensure a long-lasting and equitable peace. As Allan and Keller would note, “JustPeace needs to be maintained.”233Towards a legal framework: case studies The advent of peace parks around the world has been a welcome affirmation that conservation,sustainable development and peace theories can be turned into on-the-ground practice. Participation in231See Jesse C. Ribot, Building Local Democracy through Natural Resource Interventions: An Environmentalists Responsibility (WRI 2008).232M. Nils Peterson, Markus J. Peterson & Tarla Rai Peterson, Conservation and the Myth of Consensus, 19 Conservation Biology 762 (2005).233Allan & Keller, supra note 222, at viii. Page 61 of 233 Copyright ©2010 by Elaine Hsiao
  • 62. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010the creation of peace parks has been wide and diverse, ranging from the initiatives of local individualsand small-scale civil society organizers to multinational NGOs and Heads of State or Government.Each peace park has been crafted to suit the needs and circumstances of the environment and people itseeks to protect. Each, with a unique story and different lessons to be shared. Here, we briefly surveythree different TBPAs for peace and cooperation: Waterton-Glacier International Peace Park (the firstpeace park in the world), the Greater Virunga Transboundary Collaboration (a TBPA that seeksconservation, sustainable development and peace despite on-going armed conflict), and Costa Rica andPanamas Parque Internacional La Amistad. Waterton-Glacier International Peace Park is the worlds first official peace park. It is a pioneerexample of a transboundary protected area created to celebrate longstanding peace between two nationsand thus, one of the oldest peace parks with a long history of management experiences. The CentralAfrican case study in The Central Albertine Rift Transfrontier Protected Area Network provides a verydifferent experience. There, civil unrest, war and large-scale human displacement make the peace-building process truly challenging. Memories of war are still raw and new, especially when comparedto the 120 years of peace that Canada and the U.S. shared after the war of 1812 and the celebration ofWaterton-Glacier International Peace Park. Nevertheless, the cooperation that occurred across theborders in Central Africa to protect human and wildlife is heroic and it is relationships such as thosethat must be built upon as these nations strive to put aside tensions and distrust towards a future of justpeace and friendly relations. Parque Internacional La Amistad provides an interesting case studybecause both Costa Rica and Panama had put aside their arms and abandoned military systems,choosing to promote conservation, education and peaceful border relations in a time when insecurityand violence plagued their northern neighbors. There is an agreed legal framework that exists betweenthe two governments to facilitate holistic conservation of the Talamanca mountain forests, but thereremains want for greater collaboration and more integrated management. Although peace parks can be found in various ecoregions of the world, terrestrial and marine,all three of the case studies examined here are located in mountain forest areas. Mountains are oftenthe geological marker of international or sub-national boundaries, the battlegrounds of armed conflictand the home of marginalized communities, while forests provide a source of natural resources whichcan incite conflict, fund and prolong conflict, or alternative, build peace. For these reasons, mountainforests provide an optimal locus for the transboundary peace park model. 234 In fact, transboundarymountains were a driving force behind the IUCNs “Parks for Peace” programme, which has developedpublications and best practice guidelines for transboundary protected areas for peace and cooperation.235 When communities come together across their national or sub-national divides to cooperativelyprotect fragile mountain forest ecoregions and their ecosystems against anthropogenically inducedenvironmental change and the deconstructive effects of armed conflict, they will have a much betterchance at sustainable development. A transboundary collaborative governance framework wouldsupport many efforts by local forest dependent communities themselves to address various234Martin F. Price, Conservation and Sustainable Development in Mountain Areas 8 (IUCN, 2004).235Id. Page 62 of 233 Copyright ©2010 by Elaine Hsiao
  • 63. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010environmental challenges that confront their lands. The more homegrown or bottom-up that efforts toprotect transboundary environments are, the less they might be perceived as outside meddling and thusa source of tension or conflict. This section will provide a brief overview of the history of these parks, the objectives they setout to achieve and the legal framework which enshrines its fundamental principles, provides a mandateto its stewards and gives them the legal tools to achieve their goals. These experiences and othersprovide different examples of how peace parks may be created and managed, a useful introduction tothe next Chapter on legal frameworks for the establishment and collaborative stewardship oftransboundary peace parks.Waterton-Glacier International Peace Park (Canada/US) The worlds first peace park, Waterton-Glacier International Peace Park (WGIPP), was createdin 1932 to join Waterton National Park in Canada with Glacier National Park in the U.S., protecting a4,320 km² area spanning part of the North Central Rockies Forests Ecoregion. 236 This little piece of theContinental Divide, known to Blackfeet (or Blackfoot in Canada) natives as the “Backbone of theWorld,” is a geological mosaic of all rock types and the birthplace of waters, or the “apex of threeoceans,”237 flowing as far as the Hudson Bay, Pacific Ocean and the Gulf of Mexico. 238 Here,vegetative worlds collide to offer a range of vascular plant diversity as broad as the Serengeti ortemperate rainforests of the American North West, in much less space. 239 WGIPP is the northernmostlimit of Southern Rockies alpine plants, the southernmost limit of northern arctic and boreal plants, aswell as the easternmost limit of Pacific plants240 and one of only 37 biodiversity hotspots in the world. It has been ordained “the most important area for the full range of native North Americancarnivores,”241 including the grizzly bear. Although proudly brandished across every California stateflag, the grizzly bear has not domiciled there for decades and in the U.S. has been pushed northwardalmost entirely into Canada, found only in corridor regions between Yellowstone and the border. 242Laden with other representative charismatic megafauna, such as wolves, cougars, lynxes, black bears,bighorn sheep, moose and elk, WGIPP forms the Crown of the Continent, part of a greater ecologicalcorridor familiarly termed Y2Y (Yellowstone to Yukon Conservation Initiative). 243 This corridorrecognizes the need for large range spaces that can support viable populations of large mammals or236Mittermeier et al., supra note 14, at 71-82.237National Parks Service, U.S. Department of Interior, Final General Management Plan and Environmental Impact Statement Volume I, at 3 (1999).238Id. at 71.239Id. at 75.240Id.; R.A. Mittermeier, C.G. Mittermeier, P. Robles Gil, J. Pilgrim, G.A.B. Da Fonseca, T. Brooks & W. Konstant, Wilderness: Earths Last Wild Places, (2003).241Mittermeier et al., supra note 14, at 71.242Id. at 78.243Charles C. Chester, Conservation Across Borders: Biodiversity in an Interdependent World 139-140 (2006). Page 63 of 233 Copyright ©2010 by Elaine Hsiao
  • 64. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010even just to serve as a critical through-way for birds migrating along the North American flyway.244 The fight to keep this favored campground of the Blackfoot and Ktunaxa peoples as anecological haven for future generations of all peoples to enjoy has been difficult and is on-going.During the 18th and 19th century, this region was tainted by illegal and/or unjust appropriations of nativelands so that a relentless free-for-all of natural resource extraction could strip beaver pelts, murder thelast of the bison, despoil minerals and poison waterways. 245 By the turn of the century, the railroadscould efficiently bring people in and resources out. In another half century, underground coal mineswould evolve to become large open pits, removing mountain tops entirely. Extraction, highwayexpansion, land conversion, commercial and residential development, clear-cutting and invasivespecies continue to threaten the peace park and bordering areas to this day. 246 Unprecedentedly, thisyear, a joint team of international scientists entered the peace park specifically to assess theendangerment posed by climate change to WGIPP and possible adaptation measures. Of 326 nationalparks surveyed in the U.S. by the U.S. National Park Service in 1980, Glacier National Park listed asfourth most threatened.247 The team of international scientists investigating WGIPP may similarly findthe peace park to be worth listing as World Heritage in Danger.248 Despite the dangers that seem to loom around every bend, WGIPP is a mountain forestbiodiversity hotspot of international importance that enjoys a protective legal framework craftedthrough decades of collaborative conservation efforts. In Canada, frontiersman John George“Kootenai” Brown and rancher F.W. Godsal, inspired by their explorations of the Waterton Lakesregion (1857-1860 Palliser Expedition) lobbied government legislators to establish Kootenay LakesForest Park.249 This was later expanded in 1895 to Waterton Lakes National Park, protecting natural244See id.; Mittermeier et al., supra note 14, at 75.245See Mittermeier et al., supra note 14, at 72-82.; See also National Parks Conservation Association [NPCA], State of the Parks: A Resource Assessment: Waterton-Glacier International Peace Park 1-2 (Deanne Kloepfer ed., 2002), citing Office of Science and Technology, U.S. National Park Service [U.S. NPS], State of the Parks Report, 1980 (1980) (threats to U.S. National Parks, including Glacier National Park), also citing Panel on the Ecological Integrity of Canadas National Parks, Parks Canada, “Unimpaired for Future Generations”: A Definition of Ecological Integrity (2000) (threats to Canadian National Parks, including Waterton National Park).246United Nations Educational, Scientific and Cultural Organization [UNESCO], World Heritage Comm., 33 rd Sess., Item 7-B of the Provisional Agenda: State of Conservation of World Heritage Properties Inscribed on the World Heritage List, N354 rev, WHC-09/33.COM/7B (May 11, 2008), available at http://whc.unesco.org/en/sessions/33COM/ (last visited Dec. 15, 2009).; UNESCO, World Heritage Comm., 33 rd Sess., Report of Decisions of the 33 rd Session of the World Heritage Committee (Seville, 2009), 33 COM 7B.22, WHC-09/33.COM/20 (July 20, 2009), available at http://whc.unesco.org/en/sessions/33COM/ (last visited Dec. 15, 2009).247NPCA, supra note 244, at 1, citing U.S. NPS, supra note 244.248Convention Concerning the Protection of the World Cultural and Natural Heritage, art. 11(4)-(7), Nov. 16, 1972, 11 I.L.M. 1358 [hereinafter World Heritage Convention].; See Erica Thorson, Anna D. Stasch, Christopher Scott, Keith Gibel, & Kim McCoy, Petition to the World Heritage Committee Requesting Inclusion of Waterton-Glacier International Peace Park on the List of World Heritage in Danger as a Result of Climate Change and for Protective Measures and Actions (International Environmental Law Project of Lewis & Clark Law School, 2006).249Mittermeier et al., supra note 14, at 72. Page 64 of 233 Copyright ©2010 by Elaine Hsiao
  • 65. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 250and cultural heritage. South of the border, a similar movement was spearheaded by George BirdGrinnell, founder of the Boone and Crockett Club and editor of Forest and Stream, who wrote often ofthe “Crown of the Continent” and the Blackfeet. 251 He called repeatedly for protection of the Montanaglaciers, lakes and wildlife. In 1900, the area was made a Forest Preserve. 252 Supported by railroadtycoon James Hill, Grinnells calls for stronger protection against the natural resources extraction thatwas devastating the landscape were rewarded by Congress and in 1910, Glacier National Park wasestablished.253 The two parks share a history of cooperation in conservation activities across the border. Just asthe Kootenai and Blackfeet natives had passed between mountains from one side of the border to theother, rangers charged with the protection of Waterton Lakes National Park (Parks Canada) and GlacierNational Park (U.S. National Park Service) often trekked around the lake and collaborated on bear andpredator management policies or fire prevention policies, sharing their scientific findings and tellingeach others stories during park interpretation sessions.254 Together, Kootenai Brown, who at this point had been designated first superintendent ofWaterton Lakes National Park, and U.S. ranger Henry “Death on the Trail” Reynolds, began suggestingthat the two parks should be joined as one. 255 They were supported by petitions from the RotaryInternational chapters in both Alberta and Montana, who at their premier annual goodwill meeting in1931 unanimously approved a resolution on the establishment of an International Peace Park. 256 Inresponse to the invigorated petitioning of local authorities that followed the rotary declaration,legislatures in Canada and the U.S. passed the appropriate legislation to officially create WGIPP in thesummer of 1932.257 Celebrating over one-hundred years of peace and friendly relations along theworlds longest undefended border (5,525 miles/8,892 km), President Herbert Hoover and PrimeMinister R.B. Bennett officially dedicated WGIPP on June 18, 1932, pioneering the peace park modelfor all the world to see.258Establishment of Waterton-Glacier International Peace Park250Id.; Rotary International, It Began as a Bold Idea: Where No Boundary Could Be Seen, No Boundary Should Be..., at 7 (n.d.), available at www.nps.gov/glac/pdf/rotary_web.pdf (last visited Dec. 15, 2009).251Mittermeier et al., supra note 14, at 72.252U.S. NPS, A Brief History of Glacier (2006), available at http://www.nps.gov/glac/historyculture/index.htm (last visited Dec. 15, 2009).253Glacier National Park, 16 U.S.C.A. §161 (1910).254U.S. NPS, Glacier Teachers Guide: Introduction (2007), http://www.nps.gov/glac/forteachers/wgipp-teacher-guide.htm.255U.S. NPS, Waterton-Glacier International Peace Park 1 (NPS Background Paper, n.d.), available at www.peaceparks2007.org/documents/wgipp.pdf (last visited Dec. 15, 2009).256Letter from Arthur E. Demaray, Acting Associate Director, National Park Service, to E. T. Scoyen, Superintendent of Glacier National Park, National Park Service (Jan. 12, 1932) (on file with U.S. National Park Service).257Part of Waterton-Glacier International Peace Park, 16 U.S.C.A. §161(a) (May 2, 1932).258U.S. NPS, The Waterton-Glacier International Peace Park: 1932-1975: Symbol and/or Reality? (n.d.), on file with U.S. National Park Service.; Waterton Resource Guide, Waterton-Glacier International Peace Park 2 (n.d.). Page 65 of 233 Copyright ©2010 by Elaine Hsiao
  • 66. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Intentions to declare a transboundary peace park linking Waterton Lakes National Park andGlacier National Park as WGIPP were first solidified in a resolution proposed by Rev. Canon S. H.Middleton of Cardston at the first annual good-will meeting of Rotary Club members from Cardston,Lethbridge, Calgary, Alberta, Estevan Saskatchewan, Great Falls, Kalispell and Missoula Montana onJuly 4th, 1931. Reverend Canon Middletons motion was seconded by Harry B. Mitchell of Great Fallsand supported unanimously by the hundred Rotarians gathered at the Prince Wales Hotel in WatertonLakes National Park. Rotary Club Resolution Supporting the International Peace Park “Whereas one hundred members of the Rotary Clubs, representing the cities of Cardston, Lethbridge and Calgary of Alberta; Great Falls, Kalispell and Missoula of Montana, and Estevan, Saskatchewan, are assembled together attending an international meeting at the Water Lakes National Park; And Whereas, it has been decided that a similar annual meeting be held alternately at Glacier Park, Montana, and Waterton National Park, Alberta; Therefore, Be It Resolved, that the proper authorities be petitioned to commence negotiations to establish the two parks indicated as a permanent International Peace Park, which shall be definitely set aside for laudable purpose. Pledging our loyalty and allegiance to foster all international relationships.”259Pursuant to passage of the Rotary Club resolution above, negotiations between Rotarians and localofficials (namely Brig. General J.S. Stewart of Alberta and Hon. Scott Leavitt in Montana) wereundertaken and in 1932. Subsequently, Bills were presented to the U.S. Federal Government inWashington D.C. and the Dominion Government in Ottawa for the inclusion of Glacier National Parkand Waterton Lakes National Park in the transboundary peace park, Waterton-Glacier InternationalPeace Park.260 The declaration of WGIPP is not officially celebrated in any agreements between the twonations, but rather is codified by two independent pieces of legislation passed by the Parliament ofCanada and the U.S. Congress.261 The “Act For establishment of the Waterton-Glacier InternationalPeace Park,” was first approved by the U.S. Congress on May 2 nd, 1932 and then followed by a259Rotary International Peace Park History, on file with U.S. National Park Service.260Id.; H.R. 4752, 72nd Cong. (1932).; Bill 97, 17th Parl. (1932).261An Act Respecting the Waterton-Glacier International Peace Park, May 24, 1932, 22-23 George (Can.).; Part of Waterton-Glacier International Peace Park, 16 U.S.C.A. §161(a) (May 2, 1932). Page 66 of 233 Copyright ©2010 by Elaine Hsiao
  • 67. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 th 262Proclamation by President Herbert Hoover on June 30 , 1932. Shortly after Congressional approvalof the Act establishing WGIPP in the U.S., the Canadian Parliament passed its own legislation, Bill 79,“An Act respecting the Waterton-Glacier International Peace Park,” on May 24 th, 1932, thusrecognizing Waterton Lakes National Park as part of the unitary WGIPP. Both Acts of legislaturereaffirm the protected area status of the two national parks and then declare their respective protectedarea to be a part of the WGIPP, created for the purpose of “commemorating the long-existingrelationship of peace and good will existing between the people and Governments of Canada and theUnited States.”263 Each national park remains under the jurisdiction of the administering authority –Parks Canada or the U.S. National Park Service. On June 18th, 1932, some two thousand people convened to celebrate a dedication ceremony atGlacier National Park in Montana. At this ceremony, President Herbert Hoover stated, "Dedication ofthe Waterton Glacier International Park is a further gesture of the goodwill that has so long blessed ourrelations with our Canadian neighbours and I am gratified by the hope and faith that it will forever bean appropriate symbol of permanent peace and friendship." Prime Minister R. B. Bennett of Canadaresponded in writing "I send sincere congratulations and good wishes on the occasion of the dedication. The relations between Canada and the United States has so long been characterized not only by that peace which is the foundation of our two democracies but by mutual respect and friendship. It is my earnest hope that this great International Peace Park, stretching across our common frontier and in which citizens of both our countries may seek recreation, may forever remain a permanent memorial of all that neighbourly relations should be between adjoining nations."On July 4th, 1936, dedication of WGIPP was also celebrated on the Canadian side in Waterton NationalPark.264Management of Waterton-Glacier International Peace Park Administration of WGIPP is largely divided between the two territorial sovereignties withcooperation amongst the park authorities regarding certain activities. There exists between the twoparks authorities, the National Park Service of the Department of the Interior of the United States ofAmerica and Parks Canada of the Department of Canadian Heritage of the Government of Canada, a262Waterton-Glacier International Peace Park, By the President of the United States: A Proclamation, Pres. Proc. No. 2003, 47 Stat. 2519 (June 30, 1932).263Id. at §1.264U.S. NPS, General Management Plan: Glacier National Park (1999) [hereinafter Glacier NP Management Plan].; Parks Canada, Waterton Lakes National Park of Canada Management Plan 114 (2000) [hereinafter Waterton NP Management Plan]. Page 67 of 233 Copyright ©2010 by Elaine Hsiao
  • 68. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Memorandum of Understanding governing “Cooperation in Management, Research, Protection,Conservation, and Presentation of National Parks and National Historic Sites” [hereinafter Waterton-Glacier MOU].265 The purpose of the Waterton-Glacier MOU is to design a “framework forcooperation and coordination between the Participants concerning the commemoration, conservation,an presentation of natural and cultural heritage sites.”266 The Waterton-Glacier MOU creates anIntergovernmental Committee that discusses joint projects, areas of high priority for cooperation andcollaboration, and issues between the Participants (the U.S. National Park Service and Parks Canada).267 The Intergovernmental Committee is co-chaired by a representative from each park authority, theDirector of the U.S. National Park Service and the Assistant Deputy Minister of Parks Canada, andmeets periodically in alternating locations.268 Areas in which the two national park authorities cooperate under the Waterton-Glacier MOUtypically concern information exchange and interpretation, capacity-building, planning, research andconservation activities within WGIPP.269 Park authorities share technical and professional informationor sometimes also personnel and experts. They participate in seminars, conferences, training coursesand workshops together, as well as international conventions and organizations (e.g., the WorldHeritage Convention, the IUCN, the Crown Managers Partnership, etc.). 270 Transboundary cooperationalso includes collaboration regarding concessions management, border security and control, emergencyor search and rescue response, wildland fire management, natural resources protection, habitatrestoration, wildlife monitoring, joint event planning and hikes.271 Each year there are two jointmanager meetings, one joint ranger staff meeting and a series of hikes led by the park superintendentsor rangers (e.g., Annual Superintendents Hike, International Peace Park Hike and the annual HandsAcross the Border hike).272 As of 1935, there have also been annual meetings between Rotarians onboth sides of the border, with the Assembly meeting each year in alternating countries.273 Despite the many cooperative activities, each park within WGIPP boasts its own managementplan, developed and approved in accordance with the laws of its own jurisdiction. 274 Each management265Memorandum of Understanding between the National Park Service of the Department of the Interior of the United States of America and Parks Canada of the Department of Canadian Heritage of the Government of Canada on Cooperation in Management, Research, Protection, Conservation, and Presentation of National Parks and National Historic Sites, U.S.-Can., May 20, 1998 [hereinafter U.S. NPS & Parks Canada MOU], in Sandwith et al., supra note 19, at 85, 85-89.266Id. at art. I.267Id. at art. II.268Id. at art. II(1).269Id. at art. III(1).270Id.271Wendy Ross, U.S. NPS, Waterton-Glacier International Peace Park Cooperative Activities 1 (2010) (on file with author).272Id.273Rotary International, Presentation at the 77 th Anniversary Assembly: Waterton-Glacier International Peace Park (Sept. 25-27, 2009).274Glacier NP Management Plan, supra note 263.; Waterton NP Management Plan, supra note 263. Page 68 of 233 Copyright ©2010 by Elaine Hsiao
  • 69. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010plan is elaborated with the consultation of the public, as well as with the advice of park authorities onthe other side of the international border. 275 Administration of Glacier National Park is divided into sixgeographic areas (Many Glacier, Goat Haunt-Belly River, the Going-to-the-Sun Road corridor, TwoMedicine, Middle Fork, and North Fork) and four management zones (visitor service zone, day usezone, rustic zone, and backcountry zone) with varying visitor accessibility and infrastructuredevelopment.276 277Waterton Lakes National Park is also divided into various management areas, orLandscape Management Units (LMUs). An underlying purpose of LMUs is to support grizzly bears, soeach LMU is approximately the size of a female grizzlys home range and is classified according to itsusefulness as grizzly habitat.278 Waterton Lakes National Park is also classified according to zones: (I)Special Preservation, (II) Wilderness, (III) Natural Environment, (IV) Recreation and (V) ParkServices.279 At times, park administrators collaborate with other agencies and across borders in otherinter-agency committees and/or resource management plans (e.g., the Flathead Basin Commission, theInteragency Grizzly Bear Committee, and the Montana Bald Eagle Working Group or the NorthernContinental Divide Grizzly Bear Ecosystem Management Plan and the Montana Smoke ManagementPlan).280 However, there is currently no management plan for the greater WGIPP as a whole. In WGIPP, there is some collaboration with the indigenous tribes, but little co-managementacross the various stakeholder groups outside of traditional park authorities. In Glacier National Park,park officers work with tribal officials on matters specific to tribal and park lands (e.g., wildlifemanagement, livestock trespass and joint preservation of historic and cultural landmarks). 281 Thisincludes discussion of the treaty of 1895, pursuant to which much of the eastern half of GlacierNational Park (previously part of the Blackfeet Indian Reservation, which is only a fraction of theirhistoric territories) was ceded by the Blackfeet to the U.S. Government. 282 Such conversation should bebroadened to include other historic land inhabitants, such as the Pikuni (Blackfeet, Blood), Cree,Kootenai, Gros Ventre, Stony (Assiniboine), Crow, Pend Orielle, and Salish 283. Parks Canada alsoconsults First Nations peoples in its efforts to better protect historical and cultural heritage and theycollaborate with First Nations peoples to inventory heritage sites and travel corridors. 284 They alsosupport public participation in planning, development and research. 285 Generally speaking, however,management of WGIPP is divide between two national park authorities and involves limitedcollaboration with other PA stakeholders.275Wendy Ross, supra note 270.276Glacier NP Management Plan, supra note 263.; Waterton NP Management Plan, supra note 263, at 23.277Waterton NP Management Plan, supra note 263, at 33.278Id. at 34.279Id. at 56.280Glacier NP Management Plan, supra note 263, at 80.; Waterton NP Management Plan, supra note 263, at 13.281Glacier NP Management Plan, supra note 263, at 81.282Id.283Id. at 146.284Waterton NP Management Plan, supra note 263, at 25.285Id. at 45. Page 69 of 233 Copyright ©2010 by Elaine Hsiao
  • 70. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Efforts are being made to better coordinate activities in areas surrounding WGIPP. Morestrategic land use planning is being promoted in territories where human activities might impact thetransboundary peace park and although they do not have direct authority, park authorities, wheninvited, contribute to local planning efforts at the state, county and tribal levels. 286 Resource (i.e.,timber, oil and gas) extraction prescriptions in Flathead National Forest and Lewis and Clark NationalForest help to maintain viewsheds and prevent negative impacts that would undermine park values. 287Also, for some time now, there has also been discussion of expanding WGIPP to encompass FlatheadValley in British Columbia, Canada. This would allow for improved habitat connectivity and wildlifeconservation. Waterton-Glacier International Peace Park is at its core, two adjoining protected areasseparately declared and separately managed with some cooperation regarding certain transboundaryissues. Administration of the park is coordinated to some degree, but not hugely integrated.Furthermore, it does not contemplate a multi-stakeholder collaborative management process thattranscends divides. Even efforts to prevent border clearing (a tactic used for border security purposes)inside of the park have thus far failed, undermining other efforts to maintain the ecological continuityof the transboundary peace park.288The Central Albertine Rift Transfrontier Protected Area Network (DRC/Rwanda/Uganda) The Central Albertine Rift is an area of great ecological importance, locally, regionally andinternationally. The greater Albertine Rift is in and of itself a unique ecoregion (montane forest), 289with one of the highest numbers of endemic mammals in any global ecoregion 290 (at least 34 endemicmammalian species and 12 near-endemic species).291 The Albertine Rift spans the northernmost extentof Lake Albert and the southernmost extent of Lake Tanganyika and is composed of the entire riftvalley in between.292 Its area transgresses the borders of five nation-states: Burundi, the DRC, Rwanda,Tanzania and Uganda (see Illustration 1). The heart of this, or the Central Albertine Rift, was dividedby the 1894 Conference of Berlin between the nation-states of the DRC, Rwanda and Uganda. 293 A286Glacier NP Management Plan, supra note 263, at 83.; Waterton NP Management Plan, supra note 263, at 48.287 Glacier NP Management Plan, supra note 263, at 80-81.288Id. at 98.289Defined as “relatively large units of land containing a distinct assemblage of natural communities and species, with boundaries that approximate the original extent of natural communities prior to major land-use change.” David M. Olson et al., Terrestrial Ecoregions of the World: A New Map of Life on Earth, 51 Bioscience 933, 933 (2001).290Id. at 936.291R. Kityo, A. J. Plumptre, J. Kerbis Peterhans, J. Pilgrim & D. Moyer, Section 2: Mammals, in The Biodiversity of the Albertine Rift 23 (Wildlife Conservation Society, Albertine Rift Technical Reports No. 3, 2003).292A. J. Plumptre, Section 1: The Albertine Rift, in The Biodiversity of the Albertine Rift 16 (Wildlife Conservation Society, Albertine Rift Technical Reports No. 3, 2003).293Annette Lanjouw et al., Beyond Boundaries: Transboundary Natural Resource Management for Mountain Gorillas in the Virunga-Bwindi Region 1, 6 (Biodiversity Support Program, 2001). Page 70 of 233 Copyright ©2010 by Elaine Hsiao
  • 71. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 20102003 biodiversity assessment by the Wildlife Conservation Society (WCS) of the Albertine Riftidentified a total of 402 species of mammals (39% of mammals identified in Africa),294 1,061 species ofbirds (52% of birds found in Africa),295 175 species of reptile (14% of reptiles found in Africa), 296 119species of amphibians (19% of amphibians in Africa),297 at least 117 species of butterflies. Many ofthese are endemic species298 and some are threated or IUCN Red List species.299 As is characteristic of transboundary mountain forests, the Central Albertine Rift providesimportant ecosystem services, especially as a major watersheds contributor and carbon sink, for variouspopulations. The Central Albertine Rift is critical to both the Nile River and Congo Rivertransboundary watersheds.300 Its various types of montane forest systems generate rainfall throughevapotranspiration, store water and feed important tributaries and rivers for the human and wildlifepopulations that live in and around them.301 For example, as the headwaters of the Nile River, theCentral Albertine Rift is of salient interest to a series of at least 160 million stakeholders from tendifferent States, from Uganda all the way up to Egypt. 302 It also feeds Lake Victoria, Lake Edward,Lake Kivu and Lake Tanganyika of the Great Lakes of Africa. 303 Additionally, these forests are viewedas a globally significant source of carbon sequestration that could potentially provide a substantialincome for its peoples.304 Failure to properly steward these forests could conversely contribute294R. Kityo et al., supra note 290.295C. Kahindo Ngabo1, A. Plumptre, N. E. Baker, I. Owiunji, M. Wilson, C. T. Williams, A. Byaruhanga, M. Languy, M. Herremans, T. Butynski & D.Moyer, Section 3: Birds, in The Biodiversity of the Albertine Rift 34 (Wildlife Conservation Society, Albertine Rift Technical Reports No. 3, 2003).296M. Behangana1, D. Meirte, A.J. Plumptre, K. Howell & H. Hinkel, Section 4: Reptiles, in The Biodiversity of the Albertine Rift 43 (Wildlife Conservation Society, Albertine Rift Technical Reports No. 3, 2003).297M. Behangana, D. Meirte, A.J. Plumptre, K. Howell, S. Stuart, and H. Hinkel, Section 5: Amphibians, in The Biodiversity of the Albertine Rift 51 (Wildlife Conservation Society, Albertine Rift Technical Reports No. 3, 2003).298Thirty-four mammal species are endemic and 12 are near-endemic; 41 bird species are endemic; 16 reptile species are endemic and 3 are near-endemic; 34 amphibian species are endemic and 3 are near-endemic; . See A. J. Plumptre et al., The Biodiversity of the Albertine Rift (Wildlife Conservation Society, Albertine Rift Technical Reports No. 3, 2003).299Thirty-six mammal species are threated and 89 are IUCN-listed; See id.300The Nile River Basin supports 160 million people in 10 different countries, while the Congo River Basin supports dozens of millions of people. Eric van de Giessen, Institute for Environmental Security, Charcoal in the Mist: An Overview of Environmental Security Issues and Initiatives in the Central Albertine Rift 5 (2008), citing P. Kameri- Mbote, Conflict and Cooperation: Making the Case for Environmental Pathways to Peacebuilding in the Great Lakes Region, in 12 Environmental Change and Security Program Report (2007).301Plumptre et al., supra note 160, at 9.; See also Jeanna Hyde Hecker, EnviroSense, Promoting Environmental Security and Poverty Alleviation in Virunga-Bwindi, Great Lakes Africa 7 (Institute for Environmental Security, 2005).302Eric van de Giessen, supra note 299, at 5.303Id. at 10.304Richard Hatfield & Delphine Malleret-King, International Gorilla Conservation Programme, The Economic Value of the Mountain Gorilla Protected Forests (The Virungas and Bwindi Impenetrable National Park 63-67 (2007).; Glenn K. Bush, The Economic Value of Albertine Rift Forests: Applications in Policy and Programming 235-236 (Aug. 2009) (unpublished Ph.D. dissertation, University of Stirling), available at https://dspace.stir.ac.uk/dspace/bitstream/1893/2309/1/BUSH_THESIS_2009_FINAL.pdf (last visited May 20, 2010). Page 71 of 233 Copyright ©2010 by Elaine Hsiao
  • 72. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 305significant amounts of greenhouse gases into the atmosphere. All of these water and forest resourcesare endangered by anthropogenically induced threats such as environmental degradation, armedconflict, fragmented and poor governance, or climate change.306 Human inhabitants of the Central Albertine Rift exhibit a diverse cultural make-up that has notalways been appreciated, respected or properly protected. This is one of the most highly populatedregions of the world, exhibiting a population density as elevated as 420 to 820 people per squarekilometer,307 a figure comparable to or even higher than the population densities characterizing Rwandaprior to the genocide of the 1990s (which some scholars consider to be a contributing factor to itsbreakdown into violent conflict).308 High instances of economic poverty characterize thesepopulations.309 Local peoples depend largely on subsistence agriculture and forest products for theirlivelihoods and existence.310 Historically, efforts in this region to create protected areas for wildlifeconservation have expelled marginalized peoples from ancestral lands (e.g., the removal of 1,700Batwa pygmies in Bwindi Impenetrable National Park of Uganda), while conflict and poverty continueto destroy ecosystems.311 Park administrators in the three States have struggled to balance conservationwith livelihood uses of forest resources and lands. 312 There are few buffer zones between the park andhuman communities; it is no wonder aerial surveillance photos show a stark contrast between protected305J.G. Canadell, M.R. Raupach & R.A. Houghton, Anthropogenic CO2 Emissions in Africa, 6 Biogeosciences 463 (2009), available at www.biogeosciences.net/6/463/2009/ (two main sources of anthropogenic CO2 emissions in Africa are fossil fuel combustion and land use change, as primarily derived from tropical deforestation).; Duncan Brack & Katharina Umpfenbach, Chatham House, Deforestation and Climate Change, The World Today, Oct. 2009, at 7 (“Deforestation is responsible for roughly one fifth of global carbon emissions, most of it in the tropical forests of the developing world.”).; Greenpeace International, Carving Up the Congo i (Apr. 2007) (the DRC is the worlds 4 th largest forest carbon reservoir, storing 8% of the Earths carbon, but estimates of future deforestation estimate that by 2050, the DRC will release up to 34.4 billion tonnes of CO 2 due to forest coverage loss).; See also, The Commission on Climate and Tropical Forests, Protecting the Climate Forests: Why Reducing Tropical Deforestation is in Americas Vital National Interest (2009).; See also, International Union of Forest Research Organizations [IUFRO], Making African Forests Fit for Climate Change: A Regional View of Climate-Change Impacts on Forests and People, and Options for Adaptation 9 (Klein, Buck & Eastaugh eds., 2010).306Joe Gurrieri, Jason Gritzner & Mike Chaveas, United States Department of Agriculture [USDA] Forest Service, Virunga-Bwindi Region: Republic of Rwanda, Republic of Uganda, Democratic Republic of Congo 6-8 (2005).307African Wildlife Foundation [AWF], Fauna & Flora International [FFI] & World Wildlife Fund [WWF], International Gorilla Conservation Programme: Programme Profile March 2007 3 (2007).; In some of the rural areas surrounding the CAR TBPA Network, human populations are said to be as high as 820 people per square kilometer. Jeanna Hyde Hecker, supra note 300, at 19.308Rwandas population density was approximately 290 inhabitants per square kilometer, or 3.2 people per hectare in 1993. This figure rises to 422 people per square kilometer when areas such as lakes, national parks and forest reserves, where humans are not permitted to inhabit, are excluded. Valerie Percival & Thomas Homer-Dixon, Environmental Scarcity and Violent Conflict: The Case of Rwanda 29 (American Association for the Advancement of Science & the University of Toronto, Occasional Paper, June 1995).309See Plumptre et al., supra note 160, at 9.310Id.311Mark Dowie, supra note 156, at 67.312AWF, FFI & WWF, supra note XXX at 4-5. Page 72 of 233 Copyright ©2010 by Elaine Hsiao
  • 73. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 313areas and denuded mountainsides with clear divisions at park borders. Past and ongoing armed conflict in the territory and in the region has been particularly harmfulto the ecological communities of the Central Albertine Rift, including its Homo sapien inhabitants.Perhaps the most globally infamous “ethnic” conflict in this region is that which has long existedbetween the so-called Hutus and Tutsis. Without debating the ethnic validity of the Hutus and Tutsis ordiscussing reasons for the violent conflict which has plagued the individuals who identify with thesegroups, it can be noted their conflict is very much tied to the borders between the three CentralAlbertine Rift nations (Rwanda, Uganda and the DRC). Since the late 1950s, perceived differences andviolence between the Hutus and the Tutsis caused many Tutsis to cross the Rwandan border intoUganda.314 Later on, the 1994 genocide in Rwanda brought many of these Tutsis back into Rwanda andthe DRC. Continuation of this “ethnic” conflict in the DRC has forced the migration of large numbersof human beings into neighboring territories and caused the deaths of millions (at least 4.5 millionsince the 1990-1994 war in Rwanda).315 Similarly, the cruel regimes of Milton Obote and Idi Amin inUganda (1962-1979) has pushed a diaspora into the DRC.316 Regional conflict in these and other GreatLakes States has brought an abundance of small arms and light weapons, refugees and armed groupsinto Central Africa.317 Furthermore, natural resources extraction and trafficking (e.g., conflict timber)has been used to fund prolonged armed conflict in and around park territories to detrimental effect. 318313Helga Rainer et al., Regional Conservation in the Virunga-Bwindi Region: The Impact of Transfrontier Collaboration Through the Experiences of the International Gorilla Conservation Programme, in 17 Journal of Sustainable Forestry, Transboundary Protected Areas: The Viability of Regional Conservation Strategies 189, 192 (Goodale et al. eds., 2003).314Annette Lanjouw, Building Partnerships in the Face of Political and Armed Crisis, in 16 Journal of Sustainable Forestry, War and Tropical Forests: Conservation in Areas of Armed Conflict 93, 95 (Steven V. Price ed., 2003).; The presence of refugees in the CAR TBPA Network has placed great stress on the natural environment and its resources. E.g., AWF, FFI & WWF, supra note 306 at 6 (Some 750,000 refugees fled Rwanda during the 1994 genocide, with tens of thousands of them remaining in the Virunga-Bwindi region. During this time, over 75 square kilometers of park land were completely deforested and numerous animals poached for bushmeat, including mountain gorillas).315AWF, FFI & WWF, supra note 306 at 4 (The Rwandan genocide is attributed for the deaths of up to 1 million people, while the conflict in the DRC is said to have killed more than 3.5 million in just 5 years).316Annette Lanjouw, supra note 313, at 95.317Jeffrey Boutwell & Michael Klare, A Scourge of Small Arms, 282 Scientific American 48, 48-53 (June 2000).; Annette Lanjouw, supra note 313 at 95.318“Conflict timber” has been defined as “wood that has been traded or taxed at some point in the chain of custody by armed groups, be they rebel factions or state militaries, or by a civilian administration involved in armed conflict to finance hostilities or otherwise perpetuate conflict.” Steven Price, Deanna Donovan & Wil de Jong, Confronting Conflict Timber, in V World Forests, in Extreme Conflict and Tropical Forests 117, 117 (Wil de Jong, Deanna Donovan & Ken-ichi Abe eds., Springer 2007).; See Eric van de Giessen, supra note 298.; See also Jamie Thomson & Ramzy Kanaan, United States Agency for International Development [USAID], Conflict Timber: Dimensions of the Problem in Asia and Africa 16 (2004).; Global Witness, Same Old Story: A Background Study on Natural Resources in the Democratic Republic of Congo 35 (June 2004).; UNSC, Final report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, U.N. Doc. S/2002/1146 (Oct. 16, 2002), available at http://www.un.org/News/dh/latest/drcongo.htm (last visited May 21, 2010).; Greenpeace, Forest Crime File: Danzer Group Involved in Bribery, Illegal Logging, Dealings with Blacklisted Arms Trafficker, and Page 73 of 233 Copyright ©2010 by Elaine Hsiao
  • 74. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Within the Central Albertine Rift, violent conflict has caused the deaths of numerous rangers, civiliansand wildlife, while stifling development and aid and undermining park objectives (conservation,development and peace).319 Recognizing the severe endangerment of the ecologically and culturally important CentralAlbertine Rift, actors from the African Wildlife Foundation (AWF), Fauna and Flora International (FFI)and the World Wildlife Fund (WWF) banded together to form the International Gorilla ConservationProgramme (IGCP) in 1991.320 IGCPs principal purpose was to save the last remaining populations ofmountain gorillas (Gorilla beringei beringei), one of the most endangered apes in the world.321 Theirmission was to “empower people to jointly manage a network of transboundary protected areas so thatthey contribute significantly to sustainable development and protecting the mountain gorilla and itsafromontane habitat.”322 It has sought to accomplish this goal through multi-stakeholder collaborationacross the tri-national region, but works primarily with park authorities (Office Rwandais de Tourise etes Parcs Nationaux, the Uganda Wildlife Authority and the Institut Congolais pour la Conservation dela Nature) in strengthening institutional capacities and consulting civil society regarding parkadministration and planning.323 With support from the IGCP and other international organizations, parkadministrators from the Office Rwandais de Tourise et es Parcs Nationaux (ORTPN), the UgandaWildlife Authority (UWA) and the Institut Congolais pour la Conservation de la Nature (ICCN) havesigned collaborative agreements to integrate management of eight protected areas, collectively knownas the Central Albertine Rift Transfrontier Protected Area Network (CAR TFPA Network). The firsttransboundary strategic management plan was drafted through a rigorous process of public consultationin all three States and approved in 2006, with implementation beginning in 2008.Establishment of The Central Albertine Rift Transfrontier Protected Area Network Without adopting the title “peace park” or any other analogous term indicating it as such, theCentral Albertine Rift Transfrontier Protected Area Network (CAR TFPA Network) is a peace park. Ithas been legally protected by the governments of three countries, the Democratic Republic of Congo(DRC), the Republic of Rwanda and the Republic of Uganda, for the express purposes of conservation,cooperation and peace.324 This is sufficient to qualify it as a peace park under the definition and Suspected of Forgery (Jan. 2005).319Andrew J. Plumptre, Lessons Learned from On-the-Ground Conservation in Rwanda and the Democratic Republic of Congo, in 16 Journal of Sustainable Forestry, War and Tropical Forests: Conservation in Areas of Armed Conflict 71, 77-82 (Steven V. Price ed., 2003).; Mark Jenkins, supra note 139, at 40.320 Lanjouw et al., supra note 292, at xiii.321AWF, FFI & WWF, supra note 306, at 2.322Id.323Id. at 2, 4-5 , 7.324Trilateral Memorandum of Understanding between the Office Rwandais de Tourisme et des Parcs Nationaux, the Uganda Wildlife Authority and the Institut Congolais pour la Conservation de la Nature, on the Collaborative Conservation of the Central Albertine Rift Transfrontier Protected Area Network [hereinafter CAR TBPA Network Page 74 of 233 Copyright ©2010 by Elaine Hsiao
  • 75. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010guidance of the IUCN WCPA publication, “Transboundary Protected Areas for Peace and Co-operation.”325 The significance of this designation is particularly admirable when viewed within thesocio-political circumstances affecting these three nations throughout the on-going peace park process.The CAR TFPA Network was officially declared by the governments of the DRC, Rwanda and Ugandain 2004 to coordinate activities in eight existing protected areas. 326 These include Volcano NationalPark in the Republic of Rwanda, Mgahinga Gorilla National Park, Bwindi Impenetrable National Park,Queen Elizabeth National Park, Kibale National Park, Semliki National Park and RuwenzoriMountains National Park in the Republic of Uganda, and the Virunga National Park in the DRC. Sincetheir independence from traditional colonial imperialism, all three territories have experienced extremeviolence and civil strife which has spilled back and forth across their shared borders and yet, stewardsof nature dared to envision a collective space for conservation and peace. Individually, these parkshave come a long way from Pleistocene ecological refuge to colonial hunting grounds to battlefields totransboundary peace park. Parc National des Virungas (DRC) was the first to be established in 1925. 327 This makes it theoldest national park in Africa.328 At that time, however, it was known by a different nomer – AlbertNational Park. Its name was changed in 1969 to its current form, Parc National des Virungas. Withinthat time, the park had also grown in size.329 Encompassing 8,000 square kilometers of low- and high-altitude forests, lava fields, savannas and wetlands, as well as lakes and plains, 330 it was designated aWorld Heritage Site in 1979. 331 Its main conservation objectives were to protect mountain gorillas adother species of flora and fauna for tourism and science. 332 Due to the various pressures of armedconflict and human (re)settlement in the region, its World Heritage status was elevated to “World MOU], Dem. Rep. Congo-Rwanda-Uganda, Jan. 9, 2004, art. 3(1), available at http://www.tbpa.net/documents.htm (last visited July 16, 2010).325The IUCN WCPA definition of a peace park is “transboundary protected areas that are formally dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and to the promotion of peace and co-operation,” which the CAR TFPA Network satisfies. This definition makes no reference to the explicit reference of the TBPA as a peace park. What qualifies it as a peace park are the stipulated objectives of conservation, peace and cooperation. See Lanjouw et al., supra note 292, at 22.326CAR TBPA Network MOU, supra note 323.327Kings Decree, Delvingt, Joly, J & Mankoto (1990), cited in Plumptre et al., supra note 160, at 14.328Patricia Kameri-Mbote, University of Nairobi School of Law, Environmental Conflict and Cooperation in the African Great Lakes Region: A Case Study of the Virungas 13 (Woodrow Wilson International Center for Scholars & UNEP, 2007)329When first protected, Parc National des Virunga included 20,000 ha. Of mountain forest. Shortly afterwards, it was expanded to include Rwindi Hunting Reserve and some large farms nearby. A decree issued July 9 th, 1929, grew the park to a total of 350,000 ha. A series of subsequent decrees further expanded the territory to cover more than 800,000 ha. (issued January 6th, 1939 and November 12th, 1932). Plumptre et al., supra note 160, at 15.330Jose Kalpers, World Wildlife Fund, Volcanoes Under Siege: Impact of a Decade of Armed Conflict in the Virungas (Biodiversity Support Program, 2001).331UNESCO, Oct. 22-26, 1979, Report of the Rapporteur on the Third Session of the World Heritage Committee, ¶¶ 45-46, CC-7/CONF.003-13 (Nov. 30, 1979).332Plumptre et al., supra note 160, at 14. Page 75 of 233 Copyright ©2010 by Elaine Hsiao
  • 76. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Heritage Site in Danger” in 1994. Humans living directly in and adjacent to the park have caused greatdevastation to park lands.333 Yet, Parc National des Virungas is vitally important to humans. It containsboth Lake Edward and Lake Kivu, which respectively are parts of the Nile River Basin and CongoRiver Basin.334 As mentioned previously, these watersheds provide water supplies for millions ofpeople in ten different States. Contiguously to the south of Parc National des Virungas, in northwestern Rwanda is ParcNational des Volcans. It was first protected by order of Governor of Rwanda-Urundi, which was thensupported by a decree on August 18, 1927.335 The goals of its protection were specifically to protect theVirunga Volcanoes (Visoke and Karisimbi Volcanoes) contiguously adjacent to Parc National desVirungas. Two years later, it was declared a protected area and has since then, also been designated aUNESCO Biosphere Reserve. Despite its legal protection, between 1958 and 1979, Parc National desVolcans lost more than half of its terrain to human encroachment. 336 In 1960, it was divided into twogeopolitical administrative territories – Parc National des Virungas in the north and Parc National desVolcans in the south – reflecting the independence of the DRC and Rwanda. 337 During the RwandanGenocide (primarily 1991-1994), these montane forests were infiltrated by armed troops (both theRwandan Patriotic Front and the Rwandan Armed Forces), who laid down hundreds of mines andcleared paths for access and security controls (i.e., to allow for easier surveillance and to minimize riskof ambush).338 Shortly afterward, in 1996, the massive displacement caused by the Rwandan Genocide,a Commission of the Ministry of Rehabilitation and Social Integration listed Parc National des Volcansfor settlement and integration of refugees and internally displaced peoples (IDPs). 339 Such large-scalesettlement of transient peoples with resource-demands has declined severely the coverage of protectedmontane forest in Parc Nationals des Volcans to a mere 125 square kilometers.340 Bwindi Impenetrable National Park can be found in southwestern Uganda on the edge of theWestern Rift Valley and the international boundary line shared with the DRC. It incorporates thenatural ranges of some 300 mountain gorillas (Gorilla beringei beringei), which can be found in someof the highest parts of the Kigezi Highlands, into its 330.8 square kilometers of protected forest. 341 Itwas first set aside by the colonial government in 1932 as a Forest Reserve, and then also as a Game333Patricia Kameri-Mbote, supra note 327, at 17-18 (over one million people live within just a few kilometers of the national park, over 90% of which are subsistence farmers and pastoralists).; Id. at 22 (reports in May-June 2004 observed “extensive habitat destruction and land conversion” from forest to agricultural and pastoral uses).334Eric van de Giessen, Institute for Environmental Security, Peace Park Amid Violence?: A Report on Environmental Security in the Virunga-Bwindi Region 15 (July 2005).335Plumptre et al., supra note 160, at 14.14.336Patricia Kameri-Mbote, supra note 327, at 22.; Jose Kalpers, supra note 329.; Plumptre et al., supra note 160, at 14.(328 square kilometers were reduced to 165 square kilometers between 1958 and 1973).337Plumptre et al., supra note 160, at 14.338Id. at 23-24.; Jose Kalpers, supra note 329.; Eric van de Giessen, supra note 333, at 18.339Id.340Eric van de Giessen, supra note 333, at 15.341Plumptre et al., supra note 160, at 12. Page 76 of 233 Copyright ©2010 by Elaine Hsiao
  • 77. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 342Sanctuary in 1961. This meant that Bwindi was jointly managed by the forest and game departmentsof Uganda. In 1991, Bwindi was promoted to National Park status and gazetted in 1992 so as to betterprotect “Ugandas most rare and unique flora and fauna.” 343 Two short years later, it was designated aWorld Heritage Site (1994). However, due to a variety of human pressures, it is now also considered a“World Heritage Site in Danger,” by UNESCO and the IUCN. Separated by a strip of cultivated farmland from Bwindi Impenetrable National Park isMgahinga Gorilla National Park, also located in Uganda. 344 Mgahinga Gorilla National Park shares aborder with both the DRC and Rwanda. This means that it is also abutting Parc National des Virungain the DRC and Parc National des Volcans in Rwanda. Together, these three parks cover 434 squarekilometers of volcanoes (Mr. Muhabura, Mt. Gahinga and Mt. Sabyinyo) and mountain forest gorillahabitat known as the Virunga Volcanoes.345 Mgahinga Gorilla National Park was first protected in 1930by the colonial government as a Gorilla Sanctuary. In 1941, game and forest reserve protections wereadded to this designation and in 1991, it was officially gazetted as a National Park. 346 When the parks33.7 square kilometers were set aside for the protection of rare endemic species, Mgahinga was well-settled by tribes, such as the Batwa, who were moved in exchange for compensation provided byUSAID.347 Park administrators are now considering how to best ensure that the forest and its naturalresources benefit these and other communities living around the protected area.348 Also located in the Republic of Uganda are Queen Elizabeth National Park, Kibale NationalPark, Semuliki National Park and Rwenzori Mountains National Park. Queen Elizabeth National Parkwas gazetted in 1952, two years after a visit by Queen Elizabeth II of England. 349 It occupies 1,978square kilometers of elephant corridor that also passes through the DRCs Parc National des Virungas.Kibale National Park was declared in and is composed of 776 square kilometers of primate habitat(housing 13 different species).350 Semliki National Park is one of the newest of Ugandas nationalparks. Gazetted in 1993, it covers 220 square kilometers of Ituri forest and floodplains. 351 RwenzoriMountains National Park contains the Mountains of the Moon, the highest mountain range in Africa,342Plumptre et al., supra note 160, at 13.343Statutory Instrument 3 of 1992, cited in id.344Plumptre et al., supra note 149, at 12.345Statutory Instrument 27 of 1991, amended by Statutory Instrument 3 of 1992, cited in id. at 13-14.346Lanjouw et al., supra note 292, at 20.; A. Vedder & W. Weber, Living with Wildlife: Wildlife Resource management with Local Participation in Africa (A. Kiss ed., World Bank Technical Paper No. 130, 1990).347A.J. Plumptre et al., supra note 160, at 14 (more than 2,400 people were evicted from Mgahinga National Park in 1992).; Jose Kalpers, supra note 329.348See Uganda Wildlife Authority, Bwindi Impenetrable National Park Mgahinga Gorilla National Park (Bwindi/Mgahinga Conservation Area) General Management Plan July 2001-June 2011 (July 2001).349Uganda Wildlife Authority, Queen Elizabeth National Park (QENP) (2010), http://www.uwa.or.ug/queen.html (last visited May 22, 2010).350Uganda Wildlife Authoriti, Kibale National Park (2010), http://www.uwa.or.ug/kibale.html (last visited May 22, 2010).351Uganda Wildlife Authority, Semuliki National Park (2010), http://www.uwa.or.ug/semlikinat.html (last visited May 22, 2010). Page 77 of 233 Copyright ©2010 by Elaine Hsiao
  • 78. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 352second only to individual peaks, Mount Kenya and Kilimanjaro. This range was originally protectedin 1941 as a Forest Reserve, despite calls to protect it as a National Park. 353 These requests were finallyanswered in 1989, when along with Bwindi Impenetrable National Park and Mgahinga GorillasNational Park, Rwenzori Mountains National Park was gazetted. 354 By 1991, it was officially aNational Park with 996 square kilometers high mountain forests. The Wildlife Conservation Societyhas been particularly active in these national parks, working with UWA and ICCN to addresstransboundary environmental issues, such as wildlife poaching and natural resources trafficking. 355Since these areas have experienced less instances of violence, they have become an important refugefor species fleeing the effects of heavy cross-border poaching and conflict.356 Protected areas authorities, ICCN, ORTPN and UWA, were first brought together in Rwanda in1979 under an initiative of the African Wildlife Foundation (AWF), Flora and Fauna International (FFI)and the World Wildlife Fund (WWF), called the Mountain Gorilla Project.357 Driven largely by gorillaand habitat conservation for purposes of developing inter-State ecotourism, ad hoc bilateralcommissions were organized between the DRC, Rwanda and Uganda. 358 In 1989, the firstAfromontane Forest Conference/Seminar was held in Cyangugu, Rwanda. 359 This was followed byother regional conferences, which brought together actors who would play a role in the regionalintegration of the Central Albertine Rift. Regular collaboration between stakeholders was still missingat this time, as most of these conferences were organized ad hoc and had little follow-up or continuity.Participants in the Mountain Gorilla Project responded to this by expanding their program fromRwanda to cover the entire Central Albertine Rift and reinvented themselves as the InternationalGorilla Conservation Programme at a stakeholder meeting in early 1991.360 The meeting between representatives of the nascent IGCP and three protected areas authorities(ICCN, ORTPN and UWA) advanced a partnership for the conservation of mountain gorillas and theirhabitats. It was agreed by the three governments and their protected areas authorities that IGCP wouldappropriately empowered to facilitate a regional collaborative framework for accomplishing sharedgoals.361 IGCP has since supported formal and informal collaboration between stakeholders (although352Uganda Wildlife Authority, Rwenzori Mountains National Park (2010), http://www.uwa.or.ug/rwenzori.html (last visited May 22, 2010).353The Encyclopedia of Earth, United Nations Environment Programme-World Conservation Monitoring Centre, Rwenzori Mountains National Park, Uganda (July 1, 2009), http://www.eoearth.org/article/Rwenzori_Mountains_National_Park,_Uganda (last visited May 22, 2010).354Id.355Patricia Kameri-Mbote, supra note 327, at 27.356Id. at 27-28.357Lanjouw et al., supra note 292, at 20.358Lanjouw et al., supra note 292.359Id.360Id. at 21.361Id. at 22.; Patricia Kameri-Mbote, supra note 327, at 26. Page 78 of 233 Copyright ©2010 by Elaine Hsiao
  • 79. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010primarily working with protected area officials) at all levels (from the field to high political arenas). 362Through participation in joint surveillance missions, biodiversity monitoring and joint meetings, staffmembers of the various park authorities have strengthened their relationships, thereby inspiring evenmore extensive collaboration.363 It should be stressed here that the park authorities and IGCP managedto operate in extreme conditions of violent conflict and while diplomatic relations between theirgovernments were tensely strained.364 The only formal arrangements at that time were between theDRC and Rwanda for purposes of “bilateral meetings between representatives of the two countries;cross-visits by rangers and field personnel; and, from November 1993 to April 1994, organized jointpatrols.”365 With time, these admirable feats by ORTPN, UWA, ICCN and IGCP were recognized in highlevel political agreements.366 The first of these is the “Trilateral Memorandum of UnderstandingBetween the Office Rwandais de Tourise et es Parcs Nationaux, the Uganda Wildlife Authority and theInstitut Congolais pour la Conservation de la Nature on the Collaborative Conservation of the CentralAlbertine Rift Transfrontier Protected Area Network” [hereinafter referred to as the 2004 CAR TFPANetwork MOU], signed on January 9th of 2004. This agreement recognizes Mgahinga Gorilla, BwindiImpenetrable, Queen Elizabeth, Kibali, Semliki and Ruwenzori National Parks of Uganda, VirungaNational Park of the DRC and Volcanoes National Park in Rwanda, as component parts of a greatertransboundary PA network.367 By providing legal support to the collaborative efforts of the PAauthorities, rangers, local communities and NGOs, the governments of these three countries formallyrecognized the validity of their activities and provided a basis for the further integration of parksadministration.368 Just two years later, the “Tripartite Declaration on the Transboundary Natural ResourcesManagement of the Transfrontier Protected Area Network of the Central Albertine Rift” [hereinafterreferred to as the Goma Declaration] was signed by the ministers in charge of the three protected areasauthorities – the Minister for Environment, Natural Conservation and Tourism of the DRC, the Ministerof State for Lands, Environment, Forests, Water and Mining in Rwanda, and the Minister of State forEnvironment of Uganda.369 The Goma Declaration was a joint initiative with the Ministry ofEnvironment of Spain and UNESCO that created the Central Albertine Rift Transboundary BiosphereInitiative (CAR Biosphere Initiative). The purpose of the CAR Biosphere Initiative was to facilitate the362Id. at 27.363Id. at 27.364Between 1990 and 1994, the border between Rwanda and Uganda was closed, but protected areas managers continued to communicate via IGCP, other conservation partners or even at international meetings. Jose Kalpers, supra note 329.365Id.366Patricia Kameri-Mbote, supra note 327, at 36.367CAR TBPA Network MOU, supra note 323, at art. 1.368Regional collaboration was occurring in practice since at least 1991 when the IGCP was created, but their activities were not formally recognized until the 2004 CAR TBPA Network MOU. AWF, FFI & WWF, supra note 306 at 4.369The Tripartite Ministerial Declaration on the Central Albertine Rift Transboundary Biosphere Initiative, Dem. Rep. Congo-Rwanda-Uganda, Oct. 2005. Page 79 of 233 Copyright ©2010 by Elaine Hsiao
  • 80. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010sharing of information and experiences from other transboundary protected areas and biospherereserves, so as to “ensure the conservation of the unique biodiversity of the region while promoting thesocio-economic and cultural well being of human communities in the region.” 370 Effectively, the GomaDeclaration expands regional collaboration to include international actors and recognizes the TBPA as asite of global importance.371 It is expected that a broad spectrum of stakeholders, including local communities and othergovernment agencies, NGOs, Community Based Organizations (CBOs), the private sector and theinternational community, will participate in park stewardship.372 Given the density of human settlementall the way up to the CAR TFPA Networks park borders, a robust practice of collaborative localstewardship is both necessary and practical. Historically, local communities have interacted across theborders (and not just as a result of conflict displacement). Humans in this region are known to crossborders for trade, visits to sacred sites, grazing of their animals on common rangelands and mateselection (transboundary marriages are not uncommon in this area).373 Cross-border collaborativestewardship of a shared ecoregion is a natural extension of these relations. Unfortunately, however,national environmental legal systems in these three nations has not always facilitated a process ofparticipatory management in protected areas.374 This is especially true in the DRC and Rwanda, wherenational laws do not support civic participation in environmental matters. 375 Despite this weakness,elaboration of the transboundary management plan for the CAR TFPA Network has undertaken astakeholder consultation process and hopefully its implementation will only grow this spirit of civicstewardship.376Management of The Central Albertine Rift Transfrontier Protected Area Network Park management in Virunga-Bwindi has often been difficult and dangerous, highlighting theneed for regional stakeholder (i.e., authorities, rangers, communities and NGOs) cooperation towardsjust peace. Previously, administration of the Central Albertine Rift was largely divided between thethree protected area authorities, who were each acting in accord with their own national laws andpolicies, as well as under separate management plans.377 Challenged by threats such as climate change,environmental crimes and degradation, that know no borders and aggravate socio-economic, politicaland environmental concerns, park managers felt the need to structure a more comprehensivestewardship framework. In developing a transboundary management plan for the CAR TFPA Network,370Id. at para. 4.371Transboundary Core Secretariat, Ten Year Transboundary Strategic Plan: Central Albertine Rift Transboundary Protected Area Network 2-3 (Final Version, Feb. 28, 2006) [hereinafter CAR TBPA Strategic Plan].372Id. at x.; Patricia Kameri-Mbote, supra note 327, at 38.373Patricia Kameri-Mbote, supra note 327, at 25.374Lanjouw et al., supra note 292, at 15.375Id.376 AWF, FFI & WWF, supra note 306 at 4.377Id. at 3. Page 80 of 233 Copyright ©2010 by Elaine Hsiao
  • 81. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010park authorities sought an integrated and participatory approach that incorporates civil society and theglobal community in the protection of this sensitive ecoregion. The 2004 CAR TBPA Network MOU set the stage for creation of a Transfrontier CoreSecretariat378 and development of a Transboundary Strategic Plan that applies to the entiretransboundary peace park.379 The Transfrontier Core Secretariat as established under this agreement ismade up of: (1) Executive Directors of the three protected areas authorities, ICCN, ORTPN and UWA,(2) a Technical Associate as elected by each of the Executive Directors, and (3) a representative of theInternational Gorilla Conservation Programme (IGCP).380 Transfrontier Core Secretariat decisions areadopted by consensus at its meetings, which take place at least once a year (generally twice). 381 IGCPwas designated facilitator of the transboundary process involved in creation of the Transfrontier CoreSecretariat and its Transboundary Strategic Plan, 382 but representatives of each of the three parksauthorities may also be held responsible for implementation of the objectives and mandates of the 2004CAR TBPA Network MOU.383 Quarterly meetings of the IGCP are held for purposes of regional andoperational planning, while annual meetings are held to discuss yearly program-wide planning.384 In accord with the 2004 CAR TBPA Network MOU, the ICCN, ORTPN and UWA collaboratethrough the Transfrontier Core Secretariat on a variety of issues relating to the transboundary objectivesof the MOU for the CAR TFPA Network. This includes cooperative research and monitoring,exchanges of ideas, resources, experiences and information and joint elaboration of proposals, parkguidance and best practices.385 Most importantly, all of these activities are to contribute towardsintegrated landscape-level ecosystem protected area planning and management for cooperativeconservation of biodiversity and natural as well as cultural heritage, and a “common vision fortransboundary collaboration” that contributes to peace and the reduction of poverty. 386 The“Framework for Conservation in the Albertine Rift 2004-2030” offers an illustration of this “commonvision” and is the overarching guideline for collaborative conservation and development in the region.387 In 2006, authorities signed a transboundary strategic plan to outline a legal and administrativeframework for multi-stakeholder collaboration for conservation, development and peace. The Ten-YearTransboundary Strategic Plan for the CAR TFPA Network was developed out of a 5-year process led378CAR TBPA Network MOU, supra note 323 at art. 4(1).379Id. at art. 1 & 4(1).380Id. at art. 4(3).381Id. at art. 5(3).; CAR TBPA Strategic Plan, supra note 370, at 15.382Id. at art. 4(2).; AWF, FFI & WWF, supra note 306 at 4.383CAR TBPA Network MOU, supra note 323 at art. 8.384AWF, FFI & WWF, supra note 306 at 7.385CAR TBPA Network MOU, supra note 323, at art. 3(1) & art. 5(1).386CAR TBPA Network MOU, supra note 323, at art. 3(1).387Framework for Conservation in the Albertine Rift 2004-2030, cited in CAR TBPA Strategic Plan, supra note 370, at viii, 3. Page 81 of 233 Copyright ©2010 by Elaine Hsiao
  • 82. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 388by a Core Planning Team of the Transboundary Core Secretariat. A SWOT analysis was conductedwith participation by stakeholders through questionnaires and workshops to identify priority objectives,strategies, progress indicators and monitoring methodologies. 389 The Plan is based on a medium-term30-year vision - “The Central Albertine Rift Transfrontier PA Network together with the surroundingLandscape conserved sustainably.”390 Its long term goal is to achieve “Sustainable Conservation of theCAR Biodiversity for Long Term Socio-Economic Development through Strategic TransboundaryCollaborative Management.”391 So as to provide for implementation of the Plan, a TransboundaryInter-Ministerial Board, the Transboundary Core Secretariat, Technical Committees (for Research,Tourism, Community Conservation and Enterprise, as well as Security and Law Enforcement) and aRegional Forum are named as part of a decision-making structure.392 The Transboundary Inter-Ministerial Board is composed of “representatives from the ministriesresponsible for environment, wildlife, forestry, lands, water, tourism and foreign affairs in the threecountries.” They are essentially the political arm of the decision-making structure, providing politicaloversight and ensuring government buy-in and formalization of transboundary collaboration, regionalpolicies or guidelines and harmonization of relevant national policies. 393 The Transboundary CoreSecretariats mandate is still largely governed by the 2004 CAR TFPA Network MOU, but theTransboundary Strategic Plan offers some further elaborations. Under the Plan, they are charged withharmonization of wildlife conservation, development of transboundary natural resource managementstrategies, planning, monitoring, evaluation and securing stable financing for the CAR TFPA Network.394 Each of the four Technical Committees are made up of 9 members: one representative of the ICCN,ORTPN and UWA, plus six other representatives (with no more than 2 from each country).395 These sixmembers may be drawn from experts and specialists of transboundary institutions, such as INGOs. 396Members are selected by the Transboundary Core Secretariat. 397 Each Technical Committee is chairedby one of the three protected area authorities on an annual rotating basis and they are responsible fortechnical reviews and advice.398 The Regional Transboundary Forum is an annual gathering ofstakeholders, who are chosen by the Transboundary Core Secretariat, to provide ideas and feedback onimplementation of the Plan and updates on their own projects and activities. 399 Although Planimplementation will involve stakeholder collaboration, responsibilities lie ultimately with the protected388Id. at viii, x.389Id. at 4.390Id. at 6.391Id. at xiii, 6.392Id. at viii-ix.393Id. at 15.394Id.395Id. at 15-16.396Id.397Id. at 16.398Id.399Id. Page 82 of 233 Copyright ©2010 by Elaine Hsiao
  • 83. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 400area authorities. Key principles in the stewardship of the CAR TFPA Network are collaboration and flexibility.Population dynamics in the region require a comprehensive and participatory approach to protectedareas management in order to mitigate human-protected area conflict and to ensure the greatest possibleprotection of environmental and human rights. Participatory stewardship also helps protected areaauthorities to achieve the three-pronged goal of regional collaboration in the CAR TFPA Network –conservation, peace and sustainable development. Flexibility is perhaps a lesser mentioned concept inthe legal and management frameworks governing the CAR TFPA Network. However, documentedexperiences indicate that stewardship of this conflict-ridden sensitive ecoregion requires, at times, adhoc responses to rapidly changing circumstances. CAR TFPA Network stewards have proven to beinnovative and courageous in their efforts to best protect natural environments and their biota despitethe extraordinary challenges that they face. The political agreements and the Ten-Year TransboundaryStrategic Plan which have emerged from their work validate their relative success and provide aformalized platform for further advancements towards a common vision.Parque Internacional La Amistad (Costa Rica/Panama) La Cordillera de Talamanca is an extensive mountain forest range that traverses the Costa Ricanand Panamanian border and is part of an even more impressive series of mountain chains, known as theContinental Divide, that links the Rockies to the Andes. At the center of the Continental Divide, theTalamancas serve as an important land bridge, fostering biological and genetic migration and diversitybetween the two older and larger Americas. This phenomenon is sometimes referred to bypaleontologists as the “Great American Biotic Interchange.” 401 It is here, in this mountain forestmelange of species and genetic exchange, that Parque Internacional La Amistad (PILA) is situated.Spanning nearly 2,000 square kilometers, PILA exhibits high instances of species endemism (some 20-50% of all endemic species across the various species groups can be found within the borders of PILA).402 The biodiversity of PILA is also highly representative of Costa Rican and Panamian ecology – 80-100% of all flowering plants, non-vascular plants, moss, lichen and orchids; almost 70% of all knownfauna; almost 75% of all reptiles and amphibians; and nearly 70% of all bird species of both nations. 403Here, one can witness the largest expanse of cloud forest in Central America, the second most diversecollection of butterfly fauna in the world, the convergence point of 75% of all migrating birds in the400Id. at 18.401Thomas K. Ankerson, The Mesoamerican Biological Corridor: The Legal Framework for an Integrated, Regional System of Protected Areas, 9 J. Envtl. L. & Litig. 499, 506 (1994), citing F.G. Stehli & S.D. Webb, A Kaleidoscope of Plates, Faunal and Floral Dispersals, and Sea Level Changes, in the Great American Biotic Interchange 11 (Stehli & Webb eds., 1985).402Manuel Ramírez, La Amistad: A Long History of Transboundary Friendship in Central America, in Mittermeier et al., supra note 17, at 159.403Id. at 159-160. Page 83 of 233 Copyright ©2010 by Elaine Hsiao
  • 84. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Americas and more than 80% of the Holdridge life zones identified in Costa Rica and Panama. 404Charismatic Mesoamerican fauna, such as the tapir, giant anteater, jaguars, howler monkeys, and harpyeagles all prowl the PILA cordillera.405 The Talamancas are an important hydrological and climate resource for both Costa Rica andPanama. As part of the Continental Divide, its mountains feed headwaters of rivers flowing into boththe Caribbean and Pacific Oceans. Native to the Costa Rican Pacific sector of the Talamanca MountainRange, PILA Park Administrator, Nelson Elizondo Torres, has observed that communities in the regionused to have access to water resources within a kilometer or less of their homes, but today, they dependcompletely upon Parque Internacional La Amistad for their water supply. 406 As anthropogenic climatechange and populations dynamics continue to shift and alter regional environmental security, protectionof PILA as a hydrological resource will be increasingly critical. The abundance of water andaltitudinal zonation in the Talamancas are also rhyme and reason for its diversity of forest types.Presenting a spectrum of forest ecosystems (e.g., lowland forests, cloud forests, subalpinemeadow/scrub, wet and moist tropical forests, premontane wet forests and lower montane wet forests),PILA and its surrounding vegetation provide an important ecosystem service as a significant carbonsink for the global community.407 Despite its importance as a water tower for many communities, PILA is now under the threat ofdevelopment of no less than 60 hydroelectric projects either in or adjacent to its territory. 408 The Centerfor Biological Diversity and a coalition of partner organizations filed a petition to the UNESCO WorldHeritage Committee in 2007 to have PILA included on the List of World Heritage in Danger due to themultidimensional impacts of various dams on PILA waterways.409 In response, a Reactive Monitoring404Id.405Id.406Interview with Nelson Elizondo Torres, Park Administrator of Parque Internacional La Amistad – Costa Rica Pacific Sector, SINAC-MINAET, in Altamira, Costa Rica (Apr. 20, 2010).407Manuel Ramírez, supra note 401, at 160.408Rafael E. Berrocal R., Fundación para el Desarrollo Integral, Comunitario y Conservación de los Ecosistems en Panamá [FUNDICCEP], Los Rostros Detrás de las Hidroeléctricas (May 26, 2010), http://www.fundiccep.org/ (last visited May 27, 2010) (17 dams are in construction or already construction, 11 more have been approved and 35 hydroelectric projects are in the process of official review/approval).409Erica Thorson, Linda Barrera & Jason Gray, Lewis & Clark Law School, Petition to the World Heritage Committee Requesting Inclusion of Talamanca Range-La Amistad Reserves/La Amistad National Park on the List of World Heritage in Danger (2007).; William O. McLarney & Maribel Mafla H., Probable Effects on Aquatic Biodiversity and Ecosystem Function of Four Proposed Hydroelectric Dams in the Changuinola/Teribe Watershed, Bocas del Toro, Panama, with Emphasis on Effects Within the La Amistad World Heritage Site (2007) (technical paper supporting La Amistad petition).; Jim Barborak, Julio Montes de Oca, Marc Patry & Alberto Salas, IUCN ORMA & UNESCO World Heritage Centre, Mission Report: Reactive Monitoring Mission to the Talamanca Range La Amistad Reserves/La Amistad National Park – Pila, Costa Rica and Panama (June 15, 2008).; William O. McLarney, Maribel Mafla H., Ana Maria Arias & Danielle Bouchonnet, The Threat to Biodiversity and Ecosystem Function in the La Amistad World Heritage Site, Panama and Costa Rica, from Proposed Hydroelectric Dams (2010) (Follow-up to McLarney & Mafla 2007). Page 84 of 233 Copyright ©2010 by Elaine Hsiao
  • 85. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Mission Report was submitted by the IUCN and UNESCO World Heritage Center in 2008 identifyingcontinued threats by dams and other forms of human encroachment (cattle ranching being perhaps oneof the most significant).410 A 2010 follow-up report does not shy away from indicating that there havebeen no real improvements to the situation when stating that: “it has become increasingly apparent that, chiefly as a consequence of dam proposals and in direct contravention of one of the stated purposes for declaring the La Amistad National Parks, all of the major watersheds within the World Heritage Site are threatened with multiple species extirpations and consequent secondary effects which stand to grossly alter the character of ecosystems within the Site and the surrounding protected areas and indigenous territories making up the La Amistad Biosphere Reserve.”411 Tension between long-time local community members and representatives or employees offoreign dam companies is becoming an unmitigated problem. 412 On one occasion, we were warned thatas a group of foreigners who look very much like scientists, we might be perceived as technicians orconsultants of hydroelectric projects and thus as a wise precaution, should be careful when interactingwith local people. Such hostility to dam affiliates may be attributed to the environmental degradationand change which these projects have brought to this region and the minimal social benefit which theyhave returned to the communities who are harmed by such developments. Most of the dams laborersand employees are not hired locally, so they are housed in temporary mobile homes and bused aroundon employee-only buses (in sometimes remote and rural areas with little public or privatetransportation). Many of the communities living near by hydroelectric projects have no electricity intheir homes or neighborhood and poverty continues to remain the socio-economic standard. These developments are occurring in the context of communities, who have becomeincreasingly aware of the potential ecological and social benefits of transboundary conservation and ofthe harms generated by negative environmental changes. Although they were not initially informed orconsulted of the parks designations, they have become increasingly active in the protection of landsbordering PILA. Community organizations in and around PILA have been rallying to protest andprevent the approval and construction of hydroelectric dam projects in their lands, but to little reprieve.Park protection, which began as a government imposed construct, is now being undermined by thegovernment itself (with the aid of foreign companies profiting from such infrastructure and in somecases, foreign governments looking to buy off their greenhouse gas contributions through investmentsin Clean Development Mechanisms). Many local activists are expressing frustration that they are now410Barborak et al., supra note 408.411McLarney et al., supra note 408.412See Manuel Ramírez, supra note 401, at 163. Interviews with civil society groups and individuals in all sectors (Pacific and Caribbean) of both sides of the Costa Rican and Panamanian border repeatedly reflected strong anti-hydroelectric project sentiments, great frustration at their lack of voice (oftentimes coupled with allegations of corruption) and little hope for alternatives or improvements. Page 85 of 233 Copyright ©2010 by Elaine Hsiao
  • 86. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010more educated and more organized than before, but that civil action has received less response and lesssupport from their governments.413 Recent policy changes in both Costa Rica and Panama to allow forgreater civil participation in protected areas governance will need to provide redress for suchgrievances.Establishment of Parque Internacional La Amistad In 1979, the President of Costa Rica, Lic. Rodrigo Carazo Odio, and the President of Panama,Dr. Aristides Royo, left their capitals and met in the border region of La Cordillera de Talamanca. 414The two men discussed how protection of their shared biological and hydrological resources couldcontribute to a symbolic celebration of the friendly relations that had long existed between theirnations.415 At this time there was open civil opposition to the proposed construction of an oil pipelineand highway that would greatly change the aesthetic and ecological landscape of the Talamancas.416Citizens hoped that the creation of a protected area would halt these developments. On March 3rd ofthe same year, the two presidents announced their intent to declare an international park in their twoterritories along that very Cordillera.417 Following this amiable joint declaration, the Costa RicanGovernment was the first to take action, declaring La Amistad National Park on February 4 th, 1982 bydecree.418 Although the original intent was to declare the two sides of the park simultaneously, thepolitical situation in Panama delayed such action until the issuance of an Executive Decree onSeptember 28th, 1983 setting aside the Panamanian sector of PILA.419 The Panamanian Government413Interview with Jorge O. Pitty & Damaris Sanchez, FUNDICCEP, in Cerro Punta, Panama (Apr. 23, 2010) [hereinafter Interviews with Pitty & Sanchez].414Decreto No. 13324-A, Feb. 4, 1982, Declara Parque Nacional Parque Internacional Amistad, para. 2, La Gaceta [L.G.] Feb. 22, 1982 (Costa Rica) (Que el señor Presidente de la República de Costa Rica, Licenciado Rodrigo Carazo Odio y el Excelentísimo señor Presidente de la República de Panamá, doctor Aristides Royo, se reunieron el 3 de marzo de 1979, en la región fronteriza de la Cordillera de Talamanca, con el objeto de continuar la política de cooperación en el área fronteriza, y como gesto simbólico de las excelentes relaciones de amistad y fraternidad entre los dos pueblos y Gobiernos, ambos dignatarios intercambiaron impresiones sobre el alto valor científico y ecológico de la región, y coincidieron en la necesidad de conservar y preservar la flora y la fauna de la misma, para mantener el equilibrio ecológico y fundamentalmente los recursos hidrológicos del area fronteriza y que, para tal efecto, los dos gobernantes decidieron y firmaron una declaración conjunta para crear el parque internacional de la Amistad: Costa Rica- Panamá, en ambos lados de la frontera).415Id.416At that time, an oil pipeline already carried oil between Panama and San Jose, Costa Rica. The new pipeline would have transported oil across the Talamanca Mountain Range (connecting the Atlantic and Pacific), which at that time was being shipped via trucks and cisterns. Interview with Nelson Elizondo Torres, supra note 405.417Executive Decree No. 25 (Sept. 28, 1983), cited in IUCN WCMC, La Amistad International Park and Volcan Baru National Park (Panama) World Heritage Nomination – IUCN Summary 71 (April 1990).418Decreto No. 13324-A, supra note 413.419IUCN WCMC, supra note 416, at 71 (referencing Executive Decree No. 25 of Sept. 28 th, 1983).; Interview with Ing. Lionel Quiroz, Director of Parque Internacional La Amistad – Pacifico, Ing. Benigrio Villamonte, Director of Parque Internacional La Amistad – Caribe and Lic. Harmodio Cerrud, Regional Administrator in David, Panama, Autoridad Page 86 of 233 Copyright ©2010 by Elaine Hsiao
  • 87. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 thalso gazetted Volcan Baru National Park on July 13 , 1978 and Palo Seco Protected Forest onNovember 24th, 1983.420 Finally, on September 6, 1988 a resolution was passed in Panama thatconsolidated all of these adjacent protected areas into PILA-Panama. 421 This resolution has the statusof an Executive Decree in Panama. 422 Together, the two protected areas cover an expansive mountainforest of 406,147 hectares (199,147 hectares in Costa Rica and 207,000 hectares in Panama).423 Just as the Costa Rican Government took the first steps to legally protect their section of PILA,they were also the first to submit PILA territories within their jurisdiction for international recognition.In 1982, PILA-Costa Rica was declared a biosphere reserve. 424 PILA-Costa Rica was nominated forWorld Heritage Site listing by UNESCO in 1983. 425 At this time the World Heritage Bureau noted itsrequest that the Panamanian side of PILA be recognized as well, 426 but it was not until 1990 that suchsubmission occurred. In the IUCNs Summary Report to UNESCO in support of World HeritageNomination of PILA-Panama and Volcan Baru National Park, it was noted that PILA is an internationalpark with indivisible natural and ecological characteristics and should thus be inscribed as one singlesite.427 One year later, PILA, the “most diverse and largest natural forest remaining in CentralAmerica,” was recognized as a transboundary World Heritage Site.428Management of Parque Internacional La Amistad Administration of PILA is divided between Costa Rica and Panama and then on each side of theborder, between the east and west sides of the Talamancas (the Pacific and the Caribbean). Forexample, within PILA-Costa Rica, there is La Amistad-Caribe and La Amistad-Pacífico; this division isbasically the same in Panama. For much of PILAs existence, it has been managed top-down by State Nacional del Ambiente [ANAM], in David, Panama (Apr. 24, 2010) [hereinafter Interview with Quiroz, Villamonte & Cerrud].420IUCN WCMC, supra note 416, at 71 (Volcan Baru National Park was established by Executive Decree No. 40 on June 24, 1976, but not gazetted per official publication until July 13th, 1978).421Resolución Directive No. J.D.-0021-88, Sept. 2, 1988, L.G., Sept. 6, 1988 (Pan.).422Law No. 21 (Dec. 16, 1986).423Nelson Elizondo Torres, Luís Sánchez Arguedas & Gravin Villegas Rodríguez, Ministerio del Ambiente y Energia, Sistema Nacional de Áreas de Conservación, Plan de Protección y Control: Parque Internacional La Amistad 4 (Aug. 2007).; Autoridad Nacional del Ambiente [ANAM], Associación Nacional para la Conservación de la Naturaleza Consultores Ecológicos Panameños, S.A., Plan de Manejo Parque Internacional La Amistad: Provincias de Bocas del Toro y Chiriquí 22 (Mar. 2004).424IUCN WCMC, supra note 416, at 81.425UNESCO World Heritage Committee, 7th Ord. Sess., at 6, SC/83/CONF.009/8 (Dec. 5-9, 1983).426Id.427IUCN WCMC, supra note 416, at 79 (“Panama and Costa Rica have both declared that Amistad is an international park. In terms of the areas natural resources and ecological characteristics there is no way to separate the two sides. The inscription of the new site should thus be a single one, recognizing that the two countries will cooperate in management).428IUCN WCMC, supra note 416, at 79.; Barborak et al., supra note 408, at 7. Page 87 of 233 Copyright ©2010 by Elaine Hsiao
  • 88. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010protected areas authorities, with little collaboration between the two States or with local communities.In recent years, with the intervention of international environmental NGOs, such as ConservationInternational and The Nature Conservancy, community capacity building and social organization hasbeen promoted for purposes of participating in regional environmental governance. As civicorganizations increasingly work together across the geopolitical border, public administrators areincreasingly collaborating in official conservation activities. With continued integration between thecivic and public sectors, as well as across geographic sectors, PILA may one day enjoy onecomprehensive system of stewardship that transcends all borders. In Costa Rica, protected areas are managed by the National System of Conservation Areas (ElSistema Nacional de Áreas de Conservación - SINAC), a part of its Ministry of Environment, Energyand Technology (MINAET).429 SINAC divides administration of PILA into two sectors: La Amistad-Caribbean Conservation Area (88% of PILA-Costa Rica) and La Amistad-Pacific Conservation Area(12% of PILA-Costa Rica).430 Creation of the park nearly doubled the size of SINACs attendantterritories, but it did not come with a parallel increase in resources (economic or human). 431 Today,there are a total of twelve park rangers working in all of PILA-Costa Rica, an area of nearly 200,000ha. of oftentimes difficult terrain with few footpaths.432 There is one park administrator, currentlyNelson Elizondo Torres, who manages all PILA-Costa Rica activities from the Altamira headquartersfound within the Pacific Conservation Area.433 Most of the rangers are located in this region, with justa few on the Caribbean side.434 Divided park management and uneven distribution of resourcesfragments park protection. In some parts of La Amistad-Caribbean Conservation Area, for instance,there is little oversight or institutional presence, while in other areas of La Amistad-PacificConservation Area, park lands are well protected.435 The new management plan for Costa Ricas Pacific sector of PILA that was elaborated in 2006reflects a few new developments for protected areas administration in Costa Rica. For the first time,PILAs management plan was developed with the collaboration of civil society groups, NGOs,municipalities, provincial leaders and administrators of other protected areas. 436 This included theparticipation of indigenous groups in the Caribbean, which led to the first inclusion of an allowance fortraditional indigenous uses in a conservation area management plan. Indigenous groups themselveswere allowed to define the written definition of “traditional uses.” Indigenous representatives also429Decreto No. 13324-A, supra note 413.430Jim Barborak, supra note 408, at 10.431Carlos Borge et al., The Nature Conservancy, Análisis institucional del Parque Internacional La Amistad-Talamanca 2 (2004).432Interview with Nelson Elizondo Torres, supra note 405.433Id.; Carlos Borge et al., supra note 430, at 2.434There are five administrative stations in PILA-Costa Rica. These are Tres Colinas, Potrero Grande, Altamira, Pittier and Valle del Silencio. Torres et al., supra note 422, at 4; Carlos Borge et al., supra note 430, at 2.; Interview with Nelson Elizondo Torres, supra note 405.435Carlos Borge et al., supra note 430, at 3.436Interview with Nelson Elizondo Torres, supra note 405. Page 88 of 233 Copyright ©2010 by Elaine Hsiao
  • 89. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010defended many of their sacred sites, forcing park administrators to balance issues of absolutepreservation with the development of tourism which could bring much needed revenues to the park.The new management plan also reflects the relatively recent policy in Costa Rica that supports moredecentralized and collaborative stewardship of protected areas. It recognizes the role of civil society,NGOs and other stakeholders in the conservation of PILA, particularly in buffer zones. 437 It is hopedthat a diversity of stakeholders will participate in the implementation of the peace parks managementplan.438 Administration of PILA in Costa Rica has always been challenging, but it has been arguablyeven more difficult in Panama. Administration of PILA-Panama is under the jurisdiction of theNational Environment Authority (Autoridad Nacional del Ambiente – ANAM).439 Mirroring the CostaRican system, management of PILA is separated between the Caribbean and Pacific regions. 440 Aninstitutional analysis of the efficacy of protected areas management in Panama conducted by ANAM,USAID and The Nature Conservancy (TNC) in 2001, revealed generally unfavorable marks for PILA-Panama in the Pacific sector. Social aspects, natural and cultural resources and economic indicatorswere all considered to be hardly acceptable (poco aceptable), as was general management of PILA-Pacifico.441 One of the reasons identified was the fragmented administration of PILA into two sectors(Caribbean and Pacific).442 PILA-Panama is also hugely understaffed; encompassing a larger terrestrialsuperficie, it has only one-third the number of forest rangers (four total).443 Implementation of the most recent management plan for PILA-Panama, which was issued in2004, has been extended until the adoption of a new management plan by resolution. 444 Themanagement plan applicable in Panama today supports collaborative management involvingparticipation by community groups and indigenous representatives. 445 Indigenous populations living inthe area include the Ngöbe-Bugle, Naso and Bribri.446 These groups, along with other community437Torres et al., supra note 422, at 8.438Identified stakeholders include: neighboring communities, regional hunters, owners of farms inside of PILA, Red QUERCUS (a network of civil society groups in the region), ASVO (the Association of Volunteers that works in various MINAE projects), the Organ of Judicial Investigation, Associations of Indigenous Development in the Buffer Zone of PILA, owners of farms located on the limits of PILA, the Area of Conservation-La Amistad Caribe, personnel from ANAM Chiriqui and Bocas del Toro, the Institute of Agrarian Development, FICACLAP and the Public Forces from the cantons of Buenos Aires and Coto Brus. Id. at 11-12.439Resolución Directive No. J.D.-0021-88, supra note 420.440Interview with Quiroz, Villamonte & Cerrud, supra note 418.441ANAM, supra note 422, at 58.442Id. at 58.443Interview with Nelson Elizondo Torres, supra note 405.444The original management plan was to apply for five years, expiring in 2009. Resolución No. AG-1102-2009, Dec. 14, 2009, Reestablecer y Prorrogar la Vigencia del Plan de Manejo del Parque Internacional La Amistad, L.G., Jan. 15, 2010 (Pan.) (extending application of the previous management plan until a new management plan is adopted by resolution and soliciting funds to begin elaboration of a plan in 2010).445ANAM, supra note 422, at iii, 60-64.446Id. at ii. Page 89 of 233 Copyright ©2010 by Elaine Hsiao
  • 90. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 447actors, were identified as important to the development of the management plan. Although, in reality,elaboration of the management plan involved few civil actors, there has been growing collaborationwith civil society groups in park buffer zones.448 Co-management of PILA in Panama can take place byformation of management units, committees or new administrative entities, 449 but in practice hasoccurred mostly through ANAM programs.450 Interviews with PILAs current administrators, BenigrioVillamonte (Director of the Caribbean sector), Lionel Quiroz (Director of the Pacific sector) andHarmodio Cerrud (Regional Administrator), demonstrated intentions of broadening consultation andstakeholder participation in the elaboration and implementation of a new management plan for PILA-Panama.451 With the support of certain international NGOs, PILA administrators in both Costa Rica andPanama have been able to expand their cooperative activities. External funds have supported jointcapacity-building workshops, exchanges between rangers and protected areas authorities, as well asforest fire brigades.452 It has also provided the means of developing communication infrastructureacross the border. Programs such as Project Darwin have engaged civil society and authorities on bothsides of the border in routine participatory monitoring sessions that are revealing previously unknownbiological data, as well as locations areas where information is lacking. 453 In 2008-2009, TNC fundedhelicopter surveillance flights by SINAC and ANAM that have helped to inspire a greater sense ofunity and a common vision for PILA.454 These flights represented the first aerial survey of PILA. Theyallowed park authorities to see for the first time a comprehensive overview of PILA and many of thenarcotrafficking activities that were buried deep within its mountainous forests. Since then, parkrangers from SINAC and ANAM have shared in joint patrols, allowing them to share their experienceswith various environmental issues and responses. At the political level, collaboration between the two nations in the PILA area is guided byministerial agreements.455 A convention on Cooperation for Frontier Development between theGovernments of Costa Rica and Panama was signed May 3 rd of 1992.456 More recently, a new accordwas formalized between the foreign ministers of Costa Rica and Panama, Roberto Tovar Faja and447Id. at 13-17.448Interview with Quiroz, Villamonte & Cerrud, supra note 418.449ANAM, supra note 422 at 71.450The administrative is of the view that none of the community groups are currently prepared for more meaningful participation. Id.451Id.; Stakeholders or interested parties can include: persons, NGOs or companies with rights over land or natural resources in PILA; local organizations with existing relationships with ANAM; groups with historic or cultural relations to the protected area; communities socially or economically dependent on resources of the protected area. ANAM, supra note 422 at 82.452Interview with Quiroz, Villamonte & Cerrud, supra note 418.453Interview with Nelson Elizondo Torres, supra note 405.454Id.455Interview with Quiroz, Villamonte & Cerrud, supra note 418.456Note No. 32507-RE, Feb. 2, 2005, Acuerdo de Cooperación para la Administración, Conservación y Gestión Adecuada del Parque Internacional La Amistad, L.G., Aug. 1, 2005 (Costa Rica). Page 90 of 233 Copyright ©2010 by Elaine Hsiao
  • 91. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 457 ndSamuel Lewis Navarro. This is codified in note No. 32507-RE of February 2 , 2005. The Accord ofCooperation for Administration, Conservation and Adequate Management of PILA (hereinafter 2005PILA Accord of Cooperation) creates a Binational Sectoral Technical Commission (Comisión TécnicaSectorial Binacional – CTSB) that is made up of representatives from both SINAC and ANAM. 458 TheCTSB meets at least two times a year, 459 typically in May and October.460 It delegates much of theresponsibilities and duties to the Regional Directors or Regional Administrators of PILA, requiringthem to submit regular reports to the CTSB and to produce a Binational Action Plan for internationalcooperation between the two States.461 Since 2005, the activities of the CTSB and its participants has grown. It is now composed of:representatives from relevant ministries (e.g., agriculture, health), including the environmentalministries of ANAM and SINAC-MINAE at the national and regional levels, and NGOs such asConservation International and TNC.462 There is also a Binational Subcommission created specificallyto address environmental issues regarding PILA.463 Although management plans for PILA are stilldeveloped according to the separate administrative sectors, the protected areas authorities have beendiscussing the possibility of creating a singular management plan to guide all activities within PILA. 464There is also a Binational Operative Plan in existence, but it very broad, addressing general issues suchas joint patrols and mines.465 In addition to State administration of PILA, the peace park is buffered in various parts byindigenous reserves. These are managed independently by the indigenous peoples themselves,sometimes in collaboration with park staff.466 In some cases, this separate system of indigenous landmanagement is beneficial to park administration. In Costa Rica, for example, there are less parkrangers in the Caribbean sector of the peace park because almost all access to the park is buffered byeither Bribri or Cabecar indigenous reserves.467 A visitor to PILA-Costa Rica Sector Caribe must passfirst through indigenous lands before they can reach PILA. 468 Thus, PILA-Costa Rica administrators457Interview with Quiroz, Villamonte & Cerrud, supra note 418.458Note No. DM-388-04, Sept. 16, 2004, El Ministro de Relaciones Exteriores y Culto de Costa Rica al Excelentisimo Señor Samuel Lewis Navarro Ministro de Relaciones Exteriores de Panamá, L.G. Aug. 1, 2005 (Costa Rica).459Id.460Interview with Quiroz, Villamonte & Cerrud, supra note 418 (the last meeting was in January 2010 in Cerro Punta, Panama, and another meeting was to be held in May 2010 in Costa Rica).461Note No. DM-388-04, Sept. 16, 2004, El Ministro de Relaciones Exteriores y Culto de Costa Rica al Excelentisimo Señor Samuel Lewis Navarro Ministro de Relaciones Exteriores de Panamá, L.G. Aug. 1, 2005 (Costa Rica).462Interview with Nelson Elizondo Torres, supra note 405.463Id.464Interview with Quiroz, Villamonte & Cerrud, supra note 418.465Id.466Interview with Roger González, Park Ranger and Coordinator of Community Relations of Parque Internacional La Amistad – Costa Rica Pacific Sector, SINAC-MINAET, in Altamira, Costa Rica (Apr. 21, 2010).; IUCN WCMC, supra note 416, at 84.467Interview with Nelson Elizondo Torres, supra note 405.; Interview with Roger González, supra note 465.468Id.; Carlos Borge et al., supra note 279, at 3. Page 91 of 233 Copyright ©2010 by Elaine Hsiao
  • 92. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010strategically allow the indigenous peoples to control access and activities in the parks buffer zones,freeing them to divert more economic and human resources to the Pacific sector. In some instances,however, this may frustrate efforts at more coherent park administration. Some indigenous groups haveworked alongside park administrators to streamline their land management plans and to developenvironmental education programs in their schools. 469 Other groups have hesitated to deal with parkadministrators and have rejected any efforts by park administrators to provide capacity-buildingworkshops or to teach their children outside forms of environmental education, despite possiblebenefits to the communities.470 Cooperative stewardship of PILA is essential to its effective conservation. PILA is one of thelargest protected areas in all of Central America. However, it is supported by very little institutionalinfrastructure, lacks consistent financing, and has very few official administrators or park rangers. 471Much of PILAs conservation success has been attributed to its inaccessibility. 472 On the Costa Ricanside of the peace park, civil society has been taking on a larger and larger role in stewardship activitieswithin the park and in park buffer zones. Red QUERCUS, a network of civil society organizationsworking on the Pacific side of PILA, has been working very closely with PILA administrators andrangers to conduct a variety of activities. These include joint patrols, participatory biological surveys,forest fire controls and trail maintenance. They also work with civil society groups in Panama, forexample Fundiccep, a similar network of community based organizations in the Pacific region ofPanama, to organize joint activities (such as PILAs anniversary celebrations, environmental educationprograms and fairs). Many community activists, representatives of NGOs and park administratorsenvision broader collaboration with park administrators and each other in the continued work to protectPILA and its neighboring landscape.473 Broad collaboration across shared landscapes for environmental stewardship and peace is acommon vision for transboundary conservationists. For decades, the individuals involved in the threecase studies examined above have worked towards just such a dream. A global network of peace parks469Interview with Roger González, supra note 465.470Id.471See Carlos Borge et al., supra note 430.; Interview with Nelson Elizondo Torres, supra note 405.; Interview with Quiroz, Villamonte & Cerrud, supra note 418.472Id. at 6.473Interview with Roger González, supra note 465.; Interviews with Yendry Suarez, Red QUERCUS, in Biolley, Costa Rica (Apr. 19-20, 2010).; Interview with representative of Association of Organic Producers of La Amistad [ASOPROLA], in Biolley, Costa Rica (Apr. 19, 2010).; Interview with representatives of Association of Organized Women of Biolley [ASOMOBI], in Biolley, Costa Rica (Apr. 20, 2010).; Interview with Carlos Fuentes and Arturo Pinos, representatives of the Ministry of Agricultural Development [MIDA] and the Association of Coffee Producers [APRE], in Rio Sereno, Panama (Apr. 22, 2010).; Interviews with Pitty & Sanchez, supra note 412.; Interview with Minerva, President, Agroecotouristic Association of PILA [ASAELA], in Las Nubes, Panama (Apr. 23, 2010).; Interview with Rosario Pitty, President of Friends of PILA [AMIPILA], in Cerro Punta (Apr. 23, 2010).; Interview with Luis Murillo, Conservation International, in Cerro Punta (Apr. 23, 2010). Page 92 of 233 Copyright ©2010 by Elaine Hsiao
  • 93. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010can learn from their experiences and advance the peace park concept worldwide. The next chapterlooks at peace park modalities – when they are created, how they can be created, legal frameworkssupporting peace parks declaration and management. Then it proposes an alternative methodology tothe more common peace park process of agreements at high political levels for establishing acommunity-based collaboratively managed patchwork peace parks. “Perhaps the imminent preserve which broods over it and is universally felt may best be described as peace.” − Rotary Club on Waterton-Glacier International Peace Park474474Letter from Arthur E. Demaray, Acting Associate Director, National Park Service, to E. T. Scoyen, Superintendent of Glacier National Park, National Park Service (Jan. 12, 1932) (on file with U.S. National Park Service). Page 93 of 233 Copyright ©2010 by Elaine Hsiao
  • 94. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 CHAPTER III Toward a Legal Framework for Peace Parks“It began as a bold idea: where no boundary could be seen, no boundary should be...” – John George Kootenai Brown and Ranger Henry Death on the Trail Reynolds475 Typically, a great deal of time and energy is devoted to the transformation of a landscape from afrontier for human development to a place where nature is conserved, and possibly even more so, to aplace where peace is observed. In the previous chapter, three of the many examples where this hasoccurred were surveyed in order to help distill the elements of a peace park and the process forestablishing and managing them. Peace parks concern many issues beyond traditional natureconservation. They involve, inter alia, human security and well-being, relations between nations andspecies, international and international environmental law, education and capacity-building,international aid and development, as well as peace and non-violent conflict resolution. 476 Given thepotential complexity of observing each of these interrelated, integrated and indivisible themes, it isimportant that development of appropriate mechanisms are considered when establishing thefoundations of transboundary cooperation when creating a peace park. In this chapter, we explorepeace park modalities – when and how they are or can be established and common managementframeworks for their stewardship. To conclude, a patchwork peace park is preliminarily introduced asa model of transboundary community conservation that embodies the various peace park principles andbest practices identified here.Peace park modalities In relations across geopolitical divides, nations may find themselves at a cross-roads of choicesthat span the entire spectrum of conflict and collaboration. Whatever the circumstances, communitieshave the choice to come together to mitigate transfrontier tensions in symbiotic cooperation or peacefulconflict resolution. A peace park can provide a natural landscape for conflict containment that cannotbe achieved through the isolation and segregation created by walls or through any other fortification ofmanufactured political divides that only entrench disagreement and conflict. Thus, it is important tounderstand the conditions in which cooperation ignites and peace parks are created. It is not sufficientto stop there. Peace parks once created are not invulnerable to the risks and dangers of poorgovernance, environmental change (such as climate change), or the negative impacts of future conflicts.Proper stewardship regimes for peace parks must be framed according to localized needs and interestsand in accordance with principles of international law and human rights. Stewardship frameworksshould promote a culture of just peace, as well as strengthen park sustainability and resilience to475Rotary International, supra note 249.476See Saleem H. Ali et al., Peace Parks: Conservation and Conflict Resolution (Saleem H. Ali ed., 2007). Page 94 of 233 Copyright ©2010 by Elaine Hsiao
  • 95. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010change or conflict. There are a few methods by which a TBPA can be established between countries, with variancesusually occurring in the treaty/agreement stage and in the management framework shaped byparticipating actors. Given the differing reasons for creating peace parks, the circumstances and legalsystems of the parties involved, and the ad hoc nature with which most peace parks are created aroundthe world, there has not been an established protocol followed by all, nor do all peace parks enjoy thesame protections under an analogous regime. Nevertheless, from the case studies surveyed in theprevious chapter and peace park literature, such as the IUCNs Best Practice Guidelines on“Transboundary Protected Areas for Peace and Co-operation,” one can extract a few trends in peacepark modalities that are useful towards outlining a more universal protocol for transboundary peaceparks. This chapter explores such modalities under four categories: (1) when peace parks may becreated, (2) how they might be created, (3) legal formulations for peace park agreements and (4)management frameworks for the continuity of a peace park.When peace parks are created People have demarcated peace parks around the world for a variety of reasons and at differentstages of peace or conflict. There are no limitations to the whens or wheres of peace park development,but when looking at existing peace parks around the world, it is possible to identify certain types ofsituations which are particularly appropriate for peace park designation. Peace parks have provided anarrangement for border security between two countries, arisen out of peace negotiations, or becomepart of a post-conflict peacebuilding process. Sometimes peace parks memorialize a history of war anddivision; sometimes they grow out of hopes of preventing any violent conflict between friendlyneighboring nations. Generally speaking, these can be linked to a particular stage of the peace andconflict time lapse consortium. In simplified form, these are: (1) during times of peace, preceding anyconflict or after generations of friendly relations; (2) during times of conflict or in resolution ofconflict; or (3) post-conflict, during times of peace-building in war-torn communities. Under thesecircumstances, countries all over the globe have come together to declare international peace parks,strengthening their neighborly and diplomatic relations, staving off armed conflict or jointlymemorializing the horrors of past atrocities so that they may never be repeated again. When nations share critical resources (e.g., transboundary watersheds) they face a decision as towhether or not they should cooperate in preserving and using the resource. Shared resources orlandscapes are also known as common-pool resources,477 or local and global commons. Garrett Hardinin “The Tragedy of the Commons” forebode abuse of freedom in the commons when he declared that“Freedom in a commons brings ruin to all.” 478 He theorizes that in a limited world, each stakeholder477Common-pool resources can be defined as “natural or man-made resources in which (a) exclusion is non-trivial (but not necessarily impossible) and (b) yield is subtractable.” Saleem H. Ali et al., Peace Parks: Conservation and Conflict Resolution (Saleem H. Ali ed., 2007).478Garrett Hardin, The Tragedy of the Commons, 162 Science 1243, 1244 (Dec. 1968), available at Page 95 of 233 Copyright ©2010 by Elaine Hsiao
  • 96. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010will maximize their own interests only to find that what is good for the goose is not necessarily goodfor the gander as their selfish actions deplete or destroy resources and environments. 479 As aremedy,Hardin proposes in Aristotlean fashion the privatization of commons.480 This then inherentlynecessitates an administrative system and a body of rules and principles; 481 Aristotle would call thesegovernment and laws and then likely also argue for a strong military - “For a state must have such amilitary force as will be serviceable against her neighbors, and not merely useful at home.” 482 Thiswould, however, defeat the purposes of engaging in cooperation and a culture of peace as promoted bya peace park. Fortunately, some theorists examining governance of common-pool resources and localor global commons have suggested methods of collective action and noted empirical examples of localusers self-organizing to solve tragedies of the commons.483 Mountain forests, like many other transboundary ecoregions, are representative of regional orglobal commons divided by a geopolitical border. The presence of the border presents a geophysicallocus upon which to focus cooperative or conflictive actions by human actors. Game Theory is amathematical or economic modeling of how decision-makers might act or react across the spectrum ofchoices between conflict and cooperation when faced with border issues.484 The assumption is typicallythat they are rational and intelligent actors with different interests and information, but aware that theyare confronted with a decision-making opportunity that will affect or influence the other. 485 Based ondifferent hypothetical situations, probabilities are calculated in order to determine preferred actions orinaction.486 In a transboundary regime, peace parks are one option of the many that appear across thediversity of possibilities, but given its positive-sum result, should be contemplated more often. Mostimportantly, it should be mentioned that at any of the differing stages of the peace and conflict http://www.sciencemag.org/cgi/content/full/162/3859/1243 (last visited June 7, 2010).479Id.480Aristotle, Politics: Book Two (350 B.C.E.) (Using three examples, women, children and property, Aristotle argues that there are many difficulties and negative effects to the communalization of these entities and thus they should be privatized), available at http://classics.mit.edu/Aristotle/politics.2.two.html (last visited June 7, 2010).; Id. at 1245.; Thomas Dietz, Elinor Ostrom & Paul C. Stern, The Struggle to Govern the Commons, 302 Science 19, 19 (Dec. 2003).481Id. at 1245-1246.482Aristotle, supra note 479, at pt. VI.483Elinor Ostrom, Crafting Institutions for Self-Governing Irrigation Systems 111 (1992).; Elinor Ostrom, Self-Governance of Common-Pool Resources, in The New Palgrave Dictionary of Economics and the Law (P. Newman ed., 1998).; Elinor Ostrom, Coping With Tragedies of the Commons 2(1999).; Jean-Marie Baland & Jean-Philippe Platteau, Halting Degradation of Natural Resources: Is There a Role for Rural Communities? (UN FAO, 1996).484This chapter does not seek to divulge in any game theory analyses or to digress into debates as to its comprehensiveness by promoting it as a superior modeling theory for decision-making analysis, but merely opts to present it as a theory sometimes used by social scientists in understanding how States make decisions across shared borders. Martin J. Osborne, Ariel Rubinstein, A Course in Game Theory 1 (MIT Press, 1994).; Roger B. Myerson, Game Theory: Analysis of Conflict 1 (Harvard University Press, 1997).485A player is rational if they make “decisions consistently in pursuit of [their] own objectives.” A player is intelligent if they know “everything that we know about the game and [they] can make any inferences about the situation that we can make.” Roger B. Myerson, supra note 483, at 1-2, 4.486Roger B. Myerson, supra note 483. Page 96 of 233 Copyright ©2010 by Elaine Hsiao
  • 97. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010continuum, States have a choice to engage in cooperation and transboundary conservation. It must be noted, however, that collective action is not always a default. Some economists haveargued that cooperation for greater good does not occur because of a phenomenon known as thePrisoners Dilemma. Prisoners Dilemma is a psychological experiment used to explain a choice ofnon-cooperation in Game Theory.487 In the classic Prisoners Dilemma, there are two characters, eachunable to communicate with the other and faced with a decision to either cooperate or defect. 488Defection benefits one individually more than cooperation would, but if one defects and the other doesnot, the one who chooses to cooperate loses more; “the dilemma is that if both defect, both do worsethan if both had cooperated.”489 Cooperation provides the utility-maximizing preference to thecooperate-defect combination. Unfortunately though, each prisoner is confronted with this decisionwhile in isolation of their counterpart and opportunities to form cooperative agreements are lost. Givena choice between maximizing benefits to oneself and collective action sans assurances of any sort byones cooperative partner tends to statistically skew towards defection on both parts. 490 Thus, in acontrolled world of isolated individuals, game theorists may argue that cooperation is not be the normand point to evidence of the Prisoners Dilemma as support (e.g., trade barriers and militarized wallsbetween nations). Thankfully, other theorists argue that Game Theory hypotheticals are not doomed to a negative-sum fate induced by the Prisoners Dilemma.491 The crippling assumption in the Prisoners Dilemma isthat rational players are incapable of interacting, communicating and negotiating mutually beneficialarrangements.492 Elinor Ostrom and colleagues have documented empirical studies of small ruralcommunities where decision-making individuals have opportunities to interact and form trust-buildingrelationships.493 In those situations, local actors managed to steward common-pool resources withoutfalling victim to the selfish rationales of commons tragedians. Ostrom et al., claim that effective487Id.; Robert Axelrod, The Evolution of Cooperation 7-10 (2006).488“In the canonical prisoners dilemma example, the two men who were the only witnesses to the major crime they committed cannot be convicted of this crime unless at least one of them confesses and implicates the other, but the authorities have the evidence to convict them for another, lesser offence. The police put each man in a separate cell, and privately tell each that, if he does not turn States evidence and the other does, he will be convicted and given an especially long sentence, but the sentence he receives will not be as severe if he confesses and implicates his partner. Most notably, the authorities make the bargain to each such that the rational strategy for each prisoner is to defect from the criminal partnership by turning States evidence, irrespective of what each thinks the other will do. Therefore, each rational prisoner confesses, even though both prisoners would have been better off if neither confessed and they had thereby both been spared conviction for the major offence. To put the same point in another way, the criminal partnership does not obtain the collective good, for them, of keeping their participation in the major crime secret.” Jean- Marie Baland & Jean-Philippe Platteau, supra note 482, at vii-viii.; See also id.489Robert Axelrod, supra note 486, at 8.490Id. at 9.; Jean-Marie Baland & Jean-Philippe Platteau, supra note 482, at vii-viii.491Jean-Marie Baland & Jean-Philippe Platteau, supra note 482, at vii-x.492Id. at viii.493See Elinor Ostrom, Coping with Tragedies of the Commons (1999). Page 97 of 233 Copyright ©2010 by Elaine Hsiao
  • 98. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 494commons governance tends to be characterized by certain attributes. Selected attributes, such ascommon understanding and trust and reciprocity, highlight the insufficiencies of the PrisonersDilemma to explain players preference towards cooperation. 495 In a globalized world, a history ofcommunication and exchange often characterizes border communities. This natural dynamic willsupport cooperation across the border of defection. Peace parks must take advantage of and build uponthese attributes, so that they may similarly serve to incubate conditions, such as trust and cooperation,which facilitate cooperation in commons rather than extreme conflict or violence. Raul Lejano also takes the traditional economic game theory one step further by positing that areal world dynamic includes Structures of Care that may inspire cooperation over division. Structuresof care are the institutional “outcome of relationship-building between individuals and groups.” 496They are ever-changing and developing, contributing to a greater Model of Care. 497 The Model of Careis similar to the Functionalist Model of international relations, wherein “ties between groups...will494See Elinor Ostrom, Reformulating the Commons, 10 Ambiente & Sociedade 5 (2002).; See also Dietz et al., supra note 479, at 1908.495Attributes of resources and appropriators conducive to self-governance of commons are: “Attributes of the Resource: R1. Feasible improvement: Resource conditions are not at a point of deterioration such that it is useless to organize or so underutilized that little advantage results from organizing. R2. Indicators: Reliable and valid indicators of the condition of the resource system are frequently available at a relatively low cost. R3. Predictability: The flow of resource units is relatively predictable. R4. Spatial extern: The resource system is sufficiently small, given the transportation and communication technology in use, that appropriators can develop accurate knowledge of external boundaries and internal microenvironments. Attributes of the Appropriators: A1. Salience: Appropriators are dependant on the resource system for a major portion of their livelihood. A2. Common understanding: Appropriators have a shared image of how the resource system operates (attributes RI, 2, 3, and 4 above) and how their actions affect each other and the resource system. A3. Low Discount rate: Appropriators use a sufficiently low discount rate in relation to future benefits to be achieved from the resource. A4. Trust and Reciprocity: Appropriators trust one another to keep promises and relate to one another with reciprocity. A5. Autonomy: Appropriators are able to determine access and harvesting rules without external authorities countermanding them. A6. Prior organizational experience and local leadership: Appropriators have learned at least minimal skills of organization and leadership through participation in other local associations or learning about ways that neighboring groups have organized.” Elinor Ostrom, supra note 493, at 5.496Raul P. Lejano, Theorizing Peace Parks: Two Models of Collective Action, 43 Journal of Peace Research 563, 571 (2006).497Id. Page 98 of 233 Copyright ©2010 by Elaine Hsiao
  • 99. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010evolve naturally as an outcome of the pragmatic need to carry out mutually beneficial functions.” 498 Inhis Game Theory analysis of peace parks, Lejano describes two abutting nations maximizing land usein their respective jurisdictions such that tensions mount along the border. 499 Under highlyindividualized self-interests in times of greater conflict, the Game Theory model limited by thePrisoners Dilemma might explain nations’ myopic decision to choose a barricaded border or bufferover a peace park. However, Lejano reminds us that the game-theory model cannot be applied intoday’s globalized and dynamic system on its own without recognizing the history of relationship andtrust-building between the players, in other words, Structures of Care. 500 Where a Model of Care hasbeen developed, a peace park might transcend its service as a buffer zone (to block against the spreadof negative impacts that might provoke conflict) to provide an “active zone of cooperation.”501 This conclusion is based on a series of propositions that help to explain how border tension canbe transformed to a transboundary protected area for peace and cooperation:502 • Proposition 1: When the region of conflict encompasses land of considerable productive value, the equilibrium condition consists of both parties using their land and incurring the cost of continued friction with the other. This is the default, no- agreement paradigm. • Proposition 2: When the cost of conflict is high, the optimal course of action is for both parties to set aside and maintain a neutral, empty buffer zone, instead of an active zone of cooperation. • Proposition 3: In contrast to the model of individual rationality, 503 in the model of care, the peace park works precisely when parties cease to think only as autonomous individuals but begin to constitute themselves in relation to the other and in union with the other. In this situation, the park acts not as a buffer, but as a bridge to cooperative activity. • Proposition 4: The park acts as symbol of, vehicle for, and outcome of the joint construction of a mutual identity. It is a moral contract that guides innumerable other activities. • Proposition 5: The strength of the new institution (i.e. a regime of peace and cooperation) increases with the greater multiplexity and depth of relationships, where multiplexity pertains to the degree to which relationships overlap along multiple498Id. at 572.499Id. at 571.; Raul P. Lejano, Peace Games: Theorizing About Transboundary Conservation, in Peace Parks: Conservation and Conflict Resolution 41, 51 (Saleem H. Ali ed., 2007).500Id.501Raul P. Lejano, supra note 498, at 51.502Raul P. Lejano, supra note 495.503The Model of Individual Rationality is the traditional Game Theory paradigm where each player seeks to maximize their own benefits or to minimize their costs, optimizing individual utility. Page 99 of 233 Copyright ©2010 by Elaine Hsiao
  • 100. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 dimensions (e.g. state, town, civic group, family, etc.). • Proposition 6: Relationships are aggregative – they build upon history, culture, tradition, and institutional memory. Their cumulative nature means that the institution of the park has to evolve over time, suggesting the need for a transition period and a continuity of efforts at relationship-building.This series of propositions also pays homage to the fact that States are made up of a multiplexity ofactors or stakeholders, each with their own historical patterns of coalitions and interests. 504 This isrelevant to the patchwork peace park model discussed later, wherein the declaration and stewardship ofa peace park may depend upon the relationship dynamics of infra-state-level actors. Declaration of a peace park across a boundary divided commons protects that landscape and itsresources from Hardins “Tragedy of the Commons” and sets it aside for stewardship. It is no longer alost commons, but a “bridge to cooperative activity” as Lejano idealizes, or a collectively managedcommons as explored by Ostrom. Peace parks contribute to the transformation of conflict to peace, themaintenance of peace and the fostering of a culture of peace. Lejano’s Game Theory plus Model ofCare assay of peace parks as compared to armed force-protected walls between nations provides aninteresting analysis of peace parks across the spectrum of utilities (conflict containment to peace-building) and under varying degrees of political and social tension or amicability. 505 In similar pursuit,the analysis below, describing when peace parks are established, is classified into three temporalperiods describing varying stages of the peace and conflict continuum. These are characterized as: (1)times of peace, (2) times of conflict, and (3) times of post-conflict peacebuilding. Peace, at a minimum, can be described as the absence of conflict, and thus conflict may beunderstood as the absence of peace. In reality, the distinction is not so black and white and thecacophony of names that have been invented to describe the nuanced shades of grey are a semanticexercise for any student of peace studies. Peace and conflict may in a sense be viewed as anoverlapping continuum. Conflict has been described as, “a dispute or incompatibility caused by theactual or perceived opposition of needs, values and interests.” 506 It can range widely between adisagreement between two parties to all-out warfare, or “large-scale organized violence betweenpolitically defined groups.”507 Peace, in a definition by association, has been called “the intervalsbetween wars.”508 The antinomy of this definition of peace, is Hobbes definition of war: “For Warre, consisteth not in Battell onely, or the act of fighting; but in a tract of time,504Raul P. Lejano, supra note 495, at 578-579.505Id.506UNEP, supra note 204, at 7.507Jack S. Levy, War and Peace, in Walter Carlsnaes, Thomas Risse & Beth A. Simmons, Handbook of International Relations 350, 351 (2002).508Stanley Hoffman, Peace and Justice: A Prologue, in What is a Just Peace? 12, 12 (Allan & Keller eds., paperback ed., 2008). Page 100 of 233 Copyright ©2010 by Elaine Hsiao
  • 101. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 wherein the Will to contend by Battell is sufficiently known....So the nature of War, consisteth not in actuall fighting; but in the known disposition thereto, during all the time there is no assurance to the contrary. All other time is PEACE.”509Therefore, if conflict is a spectrum between disagreement and war, and peace is everything betweenwars, then peace and conflict necessarily overlap. If there can be conflict in times of peace, how thencan we distinguish between times of peace, times of conflict and times of post-conflict peacebuilding? Pierre Allans International Ethical Scale of war, peace, justice and global care provides aplatform for initial inquiry into this exercise of differentiating between peace, conflict and post-conflictpeacebuilding. What Allan does is compare and contrast different states of peace and conflict, startingwith two extremes – total eradication of all humankind510 vs. agape-paradise511 – slotting other phases inbetween – genocide, war, non-war, just war, stable peace, just peace, positive peace and global care –according to consequentialist and utilitarian dimensions, 512 as well as deontological513 considerations.514The result is an international Ethical Scale, as depicted below:509Thomas Hobbes, Leviathan 70 (Flathman & Johnson eds., 1997).510Total destruction of humankind would mean the eradication of all humans on Earth. An example of this would be an absolute and complete nuclear holocaust. Pierre Allan, Measuring International Ethics: A Moral Scale of War, Peace, Justice, and Global Care, in Allan & Keller, supra note 222, at 95-97 .511Agape-paradise is an ideal for “the purest type of love, love of the other for the others sake.” Agape ultimately is “the greatest humanity, the most considerate kind of attitude of people with respect to other people, animals, and even things,” a universal love. It can “go further and consider not only the rights of future generations of humans as well as of other species, but see all of this within a holistic ecological ethic.” Id. 97-100.512“Consequentialism – also known as a teleological approach – evaluates a given action by examining its consequences. This is to say that we should do whatever has the best consequences in terms of the good. For utilitarianism, a consequentialist ethic, we need to consider the greatest happiness for the greatest number of people.” Id. at 102.513“The deontological approach concentrates on the correct action, the one following given moral rules, or rules one rationally finds within oneself.” Each act strives to best exemplify a universal law or rights and duties based on morality and human dignity. Id.514Id. at 100-105. Page 101 of 233 Copyright ©2010 by Elaine Hsiao
  • 102. Elaine Hsiao Professor Nicholas Robinson LL.M. Thesis 17 July 2010 Figure 3.1 An International Ethical Scale515← Consequentialist – Utilitarian Happiness Although Allan acknowledges that the position of each of the eight points between the two extremes on the International Ethical Scale is necessarily fuzzy, he describes each category and why it scores progressively better than the last in hopes of inspiring open debate. Accordingly, genocide is any of a list of “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”516 Its invidious purpose of organized killing “for the sake of erasing a people” makes it the worst of all wars.517 Since war, whether it be civil war, guerrilla war or total war, allegedly seeks less evil aims of political change, it ranks higher. 518 Next in line, Allan proposes, is Non-War. In a 515Id. at 104. 516These acts include any of the following: “(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.” Convention on the Prevention and Punishment of the Crime of Genocide, art. 2, Dec. 9, 1948, 78 U.N.T.S. 277. 517Pierre Allan, supra note 509, at 106. 518“War is total in the sense that it is not armies, but nations that wage war. This requires the complete mobilization of the whole society and economy. Victory means crushing the enemy nation by targeting its civil society and economy.” “Guerrilla war is a total war as it requires the mobilization of a whole group or nation against its enemies and thus involves a whole people.” Id. at 94-95.; Allan distinguishes war from genocide based on the perversity of aims. Id. at 106.; War is seen more as an accelerated method of affecting social or political change, which tends to incite a social resistance proportional to the speed of change. Id. at 114, citing Quincy Wright, A Study of War: The Time Element Page 102 of 233 Copyright ©2010 by Elaine Hsiao
  • 103. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Hobbesian understanding of the term, Non-War is a negative war which disguises itself “behind anapparent peace” and the possibility of a return to arms and violence prevails. 519 He then follows thiswith Just War, a war which obeys jus ad bellum and jus in bello without ignoring consequentialism.520Further along the scale is Stable Peace, “a situation in which the probability of war is so small” that inpeoples minds, it will not happen.521 There are many reasons why Stable Peace might exist, whichhave nothing to do with justice or a universal Model of Care. 522 Therefore, Just Peace, defined byassociation as a Stable Peace with justice, is placed higher along the International Ethical Scale. Thenthere is Positive Peace, where there is no “oppression, structural violence, and social injustice,” and thepeace is all-inclusive in a very Cosmopolitan sense.523 Finally, preceding the positive extreme ofAgape-Paradise, is Global Care, “the highest humanly reachable level of an international ethic” thatdemands “obligations from all towards others, individuals and peoples alike, in a responsible andhumane way.”524 An example of a Global Care ethic might be the Earth Charter.525 Using Allans International Ethical Scale, with an adjustment made for the repositioning ofNon-War after Just War (and thereby closer towards Agape-Paradise) we can create a ModifiedInternational Ethical Scale. Allan proposes that Just War is higher than Non-War because of it is bydefinition just. Alternatively, if violence is a measure of the extremity of conflict, then a Just War is Must Be Appreciated 391 (1964).519Id. 107-109.520Id. at 109-111.; Satisfaction of the Just War Doctrine would require adherence to the following rules: Jus ad bellum 1. Just cause (iusta causa): war must be the best means to restore peace and is mainly only acceptable for reasons such as self-defence following aggression or humanitarian intervention (e.g., Responsibility to Protect). 2. Legitimate authority (legitima auctoritas) and public declaration: war is undertaken and waged exclusively by the leaders of the state or community. 3. Right intention (recto intentio): a just cause is insufficient 4. Proportionality (proportionalitas): the means and measures of war must be proportionate to the injustice that led to it. 5. Last resort (ultima ratio): all other plausible conflict-resolution alternatives to war have been exhausted. 6. Probability of success: there exists a reasonable chance of repairing the damages of war. Jus in bello 1. Discrimination: immunity or protection of non-combatant. 2. Proportionality: the means and measures of force used must be proportionate to the threat or opposing force. Id. at 109.521Id. at 111-115.522Stable Peace may be (1) peace by universal empire (if there is only one actor, there is no other party to have conflict or war with); (2) Carthaginian peace, wherein the opposition is utterly destroyed; (3) peace by indifference, where there are too “few interests or identify-forming elements” to cause conflict or they are so geographically remote that there is no contemplation of war; (4) peace by limitation of power projection, or a loss of power capabilities at a distance; (5) peace by voluntary limitation of power projection, wherein capable nations opt not to project their powers abroad; (6) peace by imposition, often by major global powers. Id.523Id. at 117-119.524Id. at 119-128.525Earth Charter Commission, The Earth Charter (2000) [hereinafter Earth Charter], available at http://www.earthcharterinaction.org/content/pages/Read-the-Charter.html (last visited June 9, 2010). Page 103 of 233 Copyright ©2010 by Elaine Hsiao
  • 104. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 526worse than a Non-War. Below is a diagram demonstrating the Point of Civilization of a conflict. Inthis illustration, violence is found to the left of the Pivotal Point and is considered a degeneration ofcivilization. On the other hand, cooperation is found to the right of the Pivotal Point, and depicts anincrease in justice and peace. Figure 3.2 The Point of CivilizationIt seems antinomious to accept Just Wars and also a tendency towards greater justice the further onegets from violence. At this point, the author finds it necessary to raise with great skepticism thefamiliar question of whether it is possible to wage Just Wars. Although negative war does notexplicitly speak on the justness of the contemplated “Battell” as Hobbes calls it, it is indicative of anabhorrence to violence that is perhaps morally superior to the allegedly “Just” War. This is at least trueaccording to the Pivotal Point of Civilization. Furthermore, Non-War may provide a merely superficialpeace, but this period of ceasefire provides genuine opportunity for alternative conflict resolution thatmay lead to a more stable peace and not to war (just or not). For these reasons, I propose a slightmodification to Pierre Allans International Ethical Scale.526Günther Gugel, Institut für Friedenspädagogik Tübingen, Peace Education (2003), http://www.dadalos.org/frieden_int/grundkurs_2/gewalt.htm. Page 104 of 233 Copyright ©2010 by Elaine Hsiao
  • 105. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 527 Figure 3.3 A Modified International Ethical Scale Accommodating for this change, we have a structured continuum with which to attach ourunderstandings of peace, conflict and post-conflict peacebuilding. From here on, conflict essentiallyencompass all forms of violent dispute resolution; in terms of the Modified International Ethical Scale:eradication of humankind, genocide, war and just war. Post-conflict peacebuilding or Non-War is whatimmediately follows these periods of conflict. Non-War is not considered to be a state of peace,because it is not necessarily stable. There is still a threat of war or a very near history of war, wherepeace must be nurtured or built. In such circumstances, a breakdown in the peace processes or a returnto violent conflict are very real and the conflict-prevention capacities of a peace park are particularlysalient. Times of peace would then include all of the other more stable forms of peace: Stable Peace,Just Peace, Positive Peace, Global Care land Agape-Paradise. Based on the categorical scaling above(A Modified International Ethical Scale), the following paragraphs will discuss when peace parks havebeen or could be established during times of peace, times of conflict and times of post-conflictpeacebuilding.Peace parks in times of peace Peace parks created during times of peace (including Stable Peace, Just Peace, Positive Peace,527Id. at 104. Page 105 of 233 Copyright ©2010 by Elaine Hsiao
  • 106. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Global Care and Agape-Paradise) are often a reflection of the relations between participatinggovernments and their communities. It is more likely that during times of peace, sufficient conditionsof stability will exist to support transnational negotiations and political agreements. There may havebeen conflict in the long-ago past (it may be difficult to find any human inhabited territory free of someconflictive history), but it is generations removed and no longer a point of tension amongst the peoples.Relations between the nation-states are characterized by on-going and continuous interchange anddialogue and there are mechanisms for pacific dispute resolution (e.g., arbitration or collaborativedispute resolution). In addition to existing relations and collaborations, governments may establishpeace parks as a forum for cooperation in cross-cutting issues, such as border security, environmentalstewardship and sustainable development. The stability of peace and the friendly relations existingbetween the nations will facilitate such a process. In these peace, there is a memory of homeostasis between human communities and with non-human communities. This is a delicate dynamic. The physical passage of people or animals or otherlife form from one side to the other, or even the perceived shift of power flux from territory to territorycan create tensions over the existence of a geopolitical line. In light of the forces of environmentalchange, particularly climate change, there needs to be a redefinition of this relationship between humanand non-human beings. Environmental change at the scale predicted of anthropogenically inducedclimate change will likely produce biological migrations that may or may not accord with politicalboundaries.528 If human communities across an invisible line can respond to such shared phenomenon,then a new homeostasis based on peace and sustainability can be defined for current and futuregenerations. Given the conditions of peace, where war or violence are far removed in the minds ofhuman communities, it is more likely that nations will choose to cooperate to maintain harmoniousbalances and give rise to the timely creation of peace parks. Thus, peace parks created during times ofpeace are often a reflection of the peaceful and friendly relations between the affected communities andGovernments. Nature appreciation is a strong unifying force that promotes a Culture of Peace, which in turnfacilitates the enjoyment of Nature. Despite differences between people who occupy different sides ofa political boundary, they can find empathy and communion in their shared admiration for Nature. Thiscommon ground supports the transformation of natural resource conflicts to environmentalpeacebuilding.529 As per the previous discussion on Game Theory and the Model of Care, where thereare natural resources shared by two adjoining territories that have developed Structures of Care (which528Climate refugees (or climate change refugees) are defined by the Global Governance Project as “people who have to leave their habitats, immediately or in the near future, because of sudden or gradual alterations in their natural environment related to at least one of three impacts of climate change: sea-level rise, extreme weather events, and drought and water scarcity.” Studies have predicted that by 2050 there may be anywhere between 250 million to 1 billion climate refugees. Frank Biermann & Ingrid Boas, The Global Governance Project, Preparing for a Warmer World: Towards a Global Governance System to Protect Climate Refugees 8, 10 (Aysem Mert ed., Global Governance Working Paper No. 33, 2007).; See Intergovernmental Panel on Climate Change [IPCC], Climate Change and Biodiversity (Gitay, Suárez, Watson & Dokken eds., IPCC Technical Paper V, Apr. 2002).529See UNEP, supra note 204, at 7. Page 106 of 233 Copyright ©2010 by Elaine Hsiao
  • 107. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010can center around environmental stewardship and Nature appreciation), there is a strong incentive forregional and thus international peace and security to be fostered. In the same vein, peace and securityform a much needed platform for environment and natural resources protection to occur. As noted inthe IUCNs 5th World Parks Congress in Durban, South Africa (2003): “a just peace is a fundamental precondition for the conservation of biodiversity and other natural and associated cultural resources, and one to which all sectors of society should contribute. Protected areas benefit from peaceful conditions both within and between countries, and can contribute to peace when they are effectively managed.”530While neighboring States are experiencing times of peace, they may build upon these common interestsby developing a relationship of collaborative transboundary conservation. The lack of conflict in theborder region and between the participating Governments facilitates such processes. Governments that have long participated in friendly relations between their nations, may see fitto celebrate such peace by cooperating in the joint declaration and management of a peace park. Thiswas the case with Waterton-Glacier International Peace Park (WGIPP) between Canada and the U.S.,as explored in the previous chapter. In these cases, formal relations had existed for some time betweenthe Governments and neither of the countries had been at war with each other for a significant period oftime. After the War of 1812, there were still hostilities and tensions rife across particular regions of theCanadian-U.S. Border, but more than a century had passed by the time WGIPP was declared and bythat time, relations between the communities were amicable. Thus, a symbolic gesture of peace andfriendship that addresses border conservation issues arose rather naturally. Transboundary conservationin this context is merely an extension of diplomatic relations to environmental stewardship activities onthe ground where physical and ecological exchange is occurring. 531 Since the establishment of WGIPP,Canada and the U.S. have engaged in other symbolic gestures reflecting the continued peace andfriendly relations between their Governments and peoples. There is a Peace Arch between Surrey,British Columbia (Canada) and Blaine, Washington (U.S.), a Peace Bridge between Fort Erie, Ontario(Canada) and Buffalo, New York (U.S.), and an International Peace Garden between Boissevein,Manitoba (Canada) and Dunseith, North Dakota (U.S.). Each of these is an emblematic linkconnecting the two countries across the expanse of its 3,987 mile-long border.532530IUCN, Peace, Conflict and Protected Areas, Recommendations of the Vth IUCN World Parks Congress, WPC Rec 5.16, 2003, available at http://cmsdata.iucn.org/downloads/recommendationen.pdf (last visited Dec. 31, 2008).531In the case of Parque Internacional La Amistad (PILA) between Costa Rica and Panama, the friendly relations that existed between the two Governments and the peace that characterized their shared border (as in comparison to the violence and turmoil afflicting their northern neighbors) served to provide an opportunity for conservation. Conservationists working in that region had been trying for some time to save the Talamancas, so the meeting between the Presidents in that territory was seen an opportune chance to save the watershed and mountain range. Telephone interview with Alvaro Ugalde, in San Jose, Costa Rica (June 2, 2010) (Alvaro Ugalde is often heralded as the “Father of Costa Rican National Park System”).532This figure does not include Canadas land border with Alaska. Janice Cheryl, Congressional Research Service, U.S. Page 107 of 233 Copyright ©2010 by Elaine Hsiao
  • 108. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Governments experiencing long-standing friendly relations may also choose to establish borderpeace parks as a forum for joint management of border issues and security. Parque Internacional LaAmistad (PILA) between Costa Rica and Panama is an example of this. The two governments formeda Binational Commission that meets to discuss transboundary or border issues, including managementof PILA, drug trafficking and passport requirements.533 Discussion of border strategies and cooperationin maintaining border security can help to buffer against possible future conflicts, as well as reduce theresource burden on States governments. The IUCN WCPA Task Force on TransboundaryConservations publication, “Security Considerations in the Planning and Management ofTransboundary Conservation Areas,” discusses benefits of integrating security and conservation inborder areas, and then provides suggestions of best practices.534 A transboundary forum, such as a jointcommissions, allows the governments and communities to resolve any issues diplomatically beforetensions or conflicts rise to the point where one or more of the parties involved may seek violence overalternative methods of dispute resolution. In addition to providing a venue for pacific conflictresolution, transboundary collaboration can minimize economic and human resource burdens onprotected areas managers and national security or intelligence offices. 535 If security measures aretransparent and well integrated into transboundary stewardship programs, it can also help to mitigateconflicts that potentially arise between local communities and border personnel. 536 In times of war, thismay be particularly helpful in ensuring that national security, intelligence, protected areas and localcommunities interests are all aligned.537 If conducted properly, peace parks can be created for purposesof harmonizing security and conservation concerns, thereby contributing to a culture of peace betweennations. Peace parks declared during times of peace or created for the commemoration of friendlyrelations do not have to involve a history of conflict, or even a shared border. 538 In some situations,“Brother” or “Sister” Parks have been created between nations that are not geographically adjacent.Governments across North, Central and South America have initiated a program for “ParquesHermanos” or “Brother Parks,” that has led to the symbolic joining of parks such as Yosemite National International Borders: Brief Facts 1 (Nov. 9, 2006).533E.g. The governments of Costa Rica and Panama are currently considering allowing citizens of their two nations to cross the border without presenting their passports. Such issues are addressed in the Binational Commission, as well as in its variously themed subcommissions. See Interview with Nelson Elizondo Torres, supra note 405.534See Leo Braack et al., supra note 5.535E.g., via cost-sharing or joint border patrol activities. Where there is overlap, such activities may also benefit protected areas authorities. This is particularly true in regions where illegal natural resource extraction or other environmental crimes, arms, drugs or human trafficking are occurring. In such cases, collaboration between peace and security officers, protected areas personnel and local community members can produce a wide network of monitoring, surveillance and enforcement that minimizes the occurrences of illegal activity.536Leo Braack et al., supra note 171 at 13.537See id.538Leo Braack et al., supra note 171 at 3. Page 108 of 233 Copyright ©2010 by Elaine Hsiao
  • 109. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 539Park in the U.S. with Torres del Paine National Park in Chile, Quebrada National Park in Argentinaand Pinnacles National Monument in the U.S.,540 and World Heritage Sites Paquime (Mexico), MountAlbán (Mexico), Mesa Verde (U.S.) and Caracol (Belize) in the Belize, Mexico and the U.S. 541 Theseparks serve as symbols of friendship and diplomacy, where despite physical distances, protected areasauthorities share information and experiences in helping each other to confront common environmentalchallenges. Quebrada National Park in Argentina and Pinnacles National Monument in the U.S. arehome to the Andean Condor and the California Condor, respectively. Both species are in grave dangerof extinction, so much of the cooperation between the National Park Service in the U.S. and theAdministration of National Parks in Argentina centers around condor recuperation and reintroduction inthe Parques Hermanos.542 As the negative impacts of anthropogenically induced environmental change, such as climatechange, unravel, the role and peacebuilding capacity of peace parks created during times of peace willbe particularly relevant. Traditionally, war has been a social mechanism for responding toenvironmental changes.543 When communities lack the ability to adapt to changing ecologicalconditions, maladaptation manifests and if not properly addressed, communities will eventually resolvemalapdatations through war.544 In order to prevent an eventual armed conflict, communities cancooperate in peacefully addressing the impacts of environmental change. When faced with the optionof “Trees now or tanks later,” communities should opt for preventative peacekeeping (conflictprevention).545Peace parks in times of conflict Extreme conflict, whether it means the extermination of the human species, or some part of it(genocide), war or even Just War, do not provide optimal conditions for the formation of a peace park.Nevertheless, it is during times of violent conflict that the objectives of a peace park and their capacityto foster a Culture of Peace, are most needed. The conflict may be induced by a variety of factors, but539U.S. Embassy in Chile, Chile y Estados Unidos Firman Convenio de Asociación (Nov. 5, 2007), http://otros.conaf.cl/? page=home/contents&seccion_id=007&unidad=0&articulo_unidad=0&articulo_id=1684&maestra=1&PHPSESSID=c2 565323742efda361d62c122d807449.540U.S. Embassy in Argentina, Acuerdo de Hermanamiento Entre el Pinnacles National Monument y el Parque Nacional Quebrada del Condorito (Jan. 15, 2010), http://spanish.argentina.usembassy.gov/evento_parques_nacionales.html.541Organization of American States [OAS], International Council for Integral Development [CIDI], Interamerican Commission of Culture, Uniendo el Patrimonio Cultural y las Comunidades a Través de Fronteras: Parques Hermanos de las Americas (Mar. 22, 2006), http://scm.oas.org/doc_public/SPANISH/HIST_06/CIDI01566S04.doc.542U.S. Embassy in Argentina, supra note 539.543Jeffrey A. McNeely, Addressing Extreme Conflicts Through Peace Parks, in Extreme Conflict and Tropical Forests, 159, 160, 165-167 (W. de Jong et al., eds., 2007).544Id. at 160, citing R.B. Edgerton, Sick Societies: Challenging the Myth of Primitive Harmony (The Free Press, 1992).545P. Thacher, Peril and Opportunity: What it Takes to Make Our Choice, in National Parks, Conservation, and Development: The Role of Protected Areas in Sustaining Society, 12-14 (McNeely & Miller eds., 1984). Page 109 of 233 Copyright ©2010 by Elaine Hsiao
  • 110. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010those which are most conducive to peace park creation involve a border dispute or natural resourceconflict (e.g., environmental scarcity or the “resource curse”). Many of the peace parks around theworld have been established for purposes of resolving border conflict or addressing natural resourceissues.546 In these cases, the peace park is generally discussed during cease-fire or peace negotiationsand is formally created as part of the subsequent peace agreement(s). Peace parks declared in times ofconflict are the most closely affiliated to armed conflict, both temporally and physically. Peace parks are especially useful when resolving or settling border disputes. The Tatra andKrkonos peace park called for in the Krakow Treaty seeking to bring peace between the CzechRepublic, Poland and Slovakia (at the time, Czechoslovakia and Poland), is perhaps the first exampleof such an attempt. In this case, the Krakow Treaty of 1925 between what was the Czechoslovakia andPoland proposed multiple peace parks between the nations to resolve a highly contentious borderdispute.547 Between 1949 and 1967 six parks were declared: High Tatras National Park and PieniniNational Park in what is now Slovakia; Tatrzanski National Park, Karkonoski National Park andPieninski National Park in Poland; and Krkonose in what is now the Czech Republic.548 Similarly, La Cordillera del Condor is a peace park that arose out of a border dispute betweenEcuador and Peru.549 Following a peace agreement (the 1995 Rio Protocol) brokered by five Guarantornations (Argentina, Brasil, Chile and the United States) ending over one hundred and fifty years ofconflict over a disputed border, adjoining ecological parks (or Areas of Ecological Protection), “whereunimpeded transit will be guaranteed and no military forces will be allowed,” 550 were created “free ofany sign of national demarcation.”551 Jurisdiction over this territory is particularly rewarding because itprovides access to the Amazon River and is a resource-rich fairly undeveloped region of the continent.552 By creating a multi-stakeholder collaborative conservation process that allows for greater access toresources and more equitable distribution of resource benefits, delineation of the geopolitical border isrendered less relevant. Peace parks should be promoted more often in regions where borders aredisputed – both terrestrial and marine. When a dispute involves control or access to natural resources and their benefits, a peace parkcan provide an access and benefits sharing regime that is a negotiated and agreed to by all.Environmental security theorist, Thomas Homer-Dixon, has noted that resource scarcity does notautomatically cause conflict.553 Rather, conflict can arise when conflagrating factors, such as powerimbalances or political marginalization, hinder access and benefits sharing to certain people, thereby546Id. at 19.547Mittermeier et al., supra note 14, at 28.548Id.549Id. at 44.550Beth A. Simmons, United States Institute of Peace, Territorial Disputes and Their Resolution: The Case of Ecuador and Peru, 27 Peaceworks 20 (Apr. 1999).551Mittermeier et al., supra 14 at 44.552Id. at 44-45.553See Thomas Homer-Dixon, Environment, Scarcity, and Violence (2001). Page 110 of 233 Copyright ©2010 by Elaine Hsiao
  • 111. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 554augmenting social inequities. It is important that in natural resource related conflicts, peaceagreements determining access to resources and the distribution of environmental benefits are trulyequal and perceived by all parties to be equal. Meaningful participation in natural resourcemanagement and environmental stewardship regimes negotiated in cease-fire or peace treaties canpromote feelings of ownership and thus empowerment, mitigating any feelings of inequality andmarginalization that may lead to prolonged conflict. Peace parks, such as La Cordillera del Condor,with collaborative stewardship frameworks are appropriate for ensuring participatory environmentaland natural resource management processes that mitigate the likelihood of environmental conflicts. Peace parks may also be declared during times of conflict in demilitarized zones (DMZs).Although armed conflict can wreak severe havoc on the environment, sometimes it can also be itssavior.555 The presence of armed conflict may make it difficult and dangerous for civilians to inhabit ordevelop a natural landscape, thereby inadvertently protecting wildlife from human impacts (minusthose of the armed conflict itself). Some areas are explicitly set aside by combatants as DMZs,essentially an off-limits no-(hu)mans land. These zones become incidental wildlife sanctuaries and areprime for peace parks. Other areas that might be similarly suitable for peace parks are military testingor training grounds, mine fields or lands rendered unsuitable for human inhabitation, where nature canbe allowed to regenerate if set aside. As nations experience extended periods of peace and choose tomove towards demilitarization or elimination of standing armies (as Costa Rica and Panama havedone), lands that were previously controlled by the military can be converted to peace parks. Some ofthe military personnel may even consider transferring their skills to wildlife protection. Suchtranscendence from conflict to peace would well-serve the objectives of a peace park. As an example, a peace park has been proposed between the Koreas, where long-term borderconflict at the 38th parallel has led to the recognition of a Demilitarized Zone (DMZ). After the 1953ceasefire, the DMZ has served as a “war-free” zone (even then, it is one of the most militarized anddangerous borders of the world).556 Studies indicate that transboundary ecology has rebounded andthrived even; this has been attributed not to proactive or collaborative conservation efforts, but rather tothe mere absence of armed conflict or any other kind of human activity in the area. 557 Conservationistsare urging joint collaboration between the two Koreas to protect these rare natural resources,particularly as urban zones in South Korea threaten to spread northward toward the border, endangeringecosystems.558554See id. at 13 (Resource capture is a type of environmental scarcity that occurs when “powerful groups within a society...use their power to shift in their favor the laws and institutions governing resource access. This shift imposes severe structural scarcities on weaker groups.”).555Jeffrey A. McNeely, supra note 542, 160-164.556See Hall Healy, Korean Demilitarized Zone: Peace and Nature Park, 24 Intl Journal on World Peace 61, 61 (Dec. 2007).557See id.; M. Bradley, Koreas DMZ a Rare Chance for Conservation, ABC Science Online, http://www.abc.net.au/science/articles/2000/06/21/142141.htm (June 2001).558See The Korea Society, Preserving Koreas Demilitarized Zone for Conservation and Peace – Building a Global Coalition (Feb. 2006).; See id. Page 111 of 233 Copyright ©2010 by Elaine Hsiao
  • 112. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 In places where conflict seems on-going and resolution far-off, peace parks can be used tosupport coordination of conservation efforts and the resilience of natural environments to conflict. Thiswas the case in the Central Albertine Rift Transfrontier Protected Area Network (CAR TFPA Network)between the Democratic Republic of Congo, Rwanda and Uganda. Despite the regional conflict thatcolonized their parks, rangers were able to communicate with each other and maintain some level ofwildlife protection.559 If a peace park has international recognition (i.e., World Heritage Site orRAMSAR listing), then its designation may ensure that international aid continues to supportconservation activities throughout the conflict. Sustained insecurity can be justification for inclusion ofa peace park in the “List of World Heritage in Danger,” thereby invoking the assistance of other StatesParties to the UNESCO Convention Concerning the Protection of the World Cultural and NaturalHeritage (World Heritage Convention).560 It may, one day, also bring the presence of Green Helmets,the ecological analog to the UNs Blue Helmet peacekeepers. 561 Most importantly, transboundarycollaborative conservation receives the support that it needs to survive the armed conflict.Peace parks in times of post-conflict peacebuilding Peace parks are often established after conflict has ended, during periods of peacebuildingbetween nations. Times of post-conflict peacebuilding refer largely to states of Non-War or negativewar, cease-fires or the years immediately following extreme conflict. It is distinguished from times ofpeace in that it is much closer to the armed conflict and memories of the violence remain raw and fresh.Tensions may still be high and perceptions of hostility towards previous enemies may still exist.Governance may be weak and institutions or infrastructure may need to be rebuilt; true sustainability is559See Andrew J. Plumptre, supra note 318.560World Heritage Convention, supra note 247, at art. 11(4), art. 13.561“Green Helmets” would respond to environmental emergencies. They may even act under mandate of the UN Security Council (per Chapter VII Article 25), intervening in “particular environmentally destructive practices constituting a threat to peace and the authority of the Security Council.” See Linda A. Malone, “Green Helmets”: A Conceptual Framework for Security Council Authority in Environmental Emergencies, 17 Mich. J. Intl L. 515, 519, 521 (1996).; Many governments have not been keen on the idea of establishing a corps of “Green Helmets” invoked by the Security Council, because of the many controversies and arguments against the Security Council in general, as well as for reasons of their national and territorial sovereignty. Geoffrey D. Dabelko, An Uncommon Peace: Environment, Developoment, and the Global Security Agenda 50 Environment 32, 37 (2008).; Other proponents of “Green Helmets” have proposed creating them under the auspices of the United Nations General Assembly as a “UN Center for Emergency Environmental Assistance,” Id.; The Foreign Minister Eduard Shevardnadze of the then Soviet Union, has also called for a UN Environmental Security Council to be created by the UN General Assembly. Id.; A “Green Cross,” similar to the Red Cross which operates in humanitarian disasters, has also been advocated for response to environmental disasters. This was created in 1993 by the union of Soviet President Mikhael Gorbachevs “Green Cross” and Swiss National Council MP Roland Wiederkehrs “World Green Cross,” as “Green Cross International.” They work in environmental conflict prevention (e.g., water stewardship), response (e.g.,. post-conflict environmental analyses) and values change (e.g., per support of the Earth Charter). See Green Cross International (2003-2010), http://www.greencrossinternational.net. Page 112 of 233 Copyright ©2010 by Elaine Hsiao
  • 113. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010still something to be sought after. During this fragile time, relations between previously conflictivecommunities may need to be renewed. Friendly relations must be rekindled and a Culture of Peacerevived. A peace park between the recently conflictive communities provides a tangible framework forrebuilding and peacebuilding that can stave off risks of falling back into conflict. It is easier to engage in a peace park process during times of post-conflict peacebuilding thanduring times of conflict. When States have returned to times of relative peace, they are freed to engagein peace park processes and to re-establish diplomatic relations with neighboring countries. The peacepark may be established as an environmental peacebuilding tool, so as to redevelop relations andcooperation between nations or communities. This situation best comports with Gerardo Budowskisdefinition of a peace park, whereby an areas transboundary nature is not as relevant as the territorys“significant conflictive past.”562 Peace parks declared post-conflict may be similar to those developedin times of peace, in that they can celebrate a commitment to a culture of peace and friendly relations.It is an attempt to move away from conflict and towards just peace. Establishment of transboundary peace parks in post-conflict regions are particularly helpful iftransboundary natural resource management was a source of conflict or fueled the conflict. UNEPs2009 report, “From Conflict to Peacebuilding: The Role of Natural Resources and the Environment,”notes that since 1990, at least eighteen armed conflicts have been fueled by natural resourcesexploitation and “over the last sixty years at least forty percent of all intrastate conflicts have a link tonatural resources.”563 In UNEPs preliminary survey of intrastate conflicts over the last sixty years,natural resource related conflicts are twice as “likely to relapse into conflict within the first five years”than conflicts not associated with natural resources (which have tended to exhibit about 44% chance ofrelapse).564 Despite this, peace negotiations have only addressed natural resource management 24% ofthe time.565 Natural resource management is just one aspect of a peace park stewardship frameworkthat can be negotiated in a post-conflict setting. The newest international peace park in the Gola Rainforest between Liberia and Sierra Leonedemonstrates this. The Gola Rainforest peace park recognizes the role of forests in conflict as well astheir potential in a post-conflict peacebuilding environment to help communities achieve peace,cooperation and sustainable development.566 In addition, the Liberian-Sierra Leonian peace park goesanother step further and recognizes the role of the peace park in the two nations efforts to combatclimate change.567 Holistic stewardship of the Gola Rainforest now and into the future helps to ensure562Sandwith et al., supra note 19, at 3.563UNEP, supra note 204, at 8.564Id. at 8.; Carl Bruch, Senior Attorney and Co-Director of International Programs, Address at the American Branch of the International Law Associations International Law Weekend Post-Conflict Peacebuilding, Natural Resources and International Policy Session (Oct. 23, 2009).565Id. at 5, 8.566Cocorioko Man Joseph Kamanda, Climate Change: Sierra Leone and Liberia Brace to Protect Gola Forest, Environmental News Service, Oct. 25, 2009.; BirdLife International, Presidents Further Their Commitment to Peace, Cooperation and Fighting Climate Change, BirdLife International News Archive (Oct. 28, 2009).567Id. Page 113 of 233 Copyright ©2010 by Elaine Hsiao
  • 114. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 568that it will “continuously provide ecological services to the surrounding communities.” This will“further increase the resilience of the ecosystem to climate change,” 569 which has been directly andindirectly linked to international and environmental security issues. 570 A future of peace requires frankand collaborative action to mitigate and adapt to negative anthropogenically induced environmentalchanges. A future of just peace can also be cultivated when developing peace parks in post-conflictpeacebuilding contexts by explicitly commemorating the history of violent conflict in the region. Eachof the six Transfrontier Conservation Areas (TFCAs) located across all of South Africas borders are amemorial to southern Africas conflictive past.571 For years, apartheid, military and economicaggressions and war destabilized the region, turning neighbors against each other. Since the fall ofapartheid more than 25 years ago, southern Africa has been drafting a new future and in the process,has turned to Nature for its “power to heal old wounds.”572 Acknowledging the events or atrocities thatoccurred in a place can help victims and aggressors move towards reconciliation. 573 This is theassumption upon which the South African Truth and Reconciliation Commissions were based - “thatknowledge of the past leads to acceptance, tolerance, and reconciliation in the future, and that learningthe truth will somehow convince citizens to put the past behind and move on toward a moredemocratic future.”574 Conversely, denial of hostilities is not productive for the confidence or trust-building that is required to maintain peaceful relations and support meaningful collaboration betweenpeoples.575 A peace park that respectfully memorializes history can offer a platform for re-establishing568Id. at 2.569Id.570Dan Smith & Janani Vivekananda, A Climate of Conflict: The Links Between Climate Change, Peace and War (International Alert, 2007).; See Clionadh Raleigh, Lisa Jordan & Idean Salehyan, Assessing the Impact of Climate Change on Migration and Conflict (World Bank Social Development Department, 2008).; Federal Ministry for the Environment, Nature Conservation and Nuclear Safety, Climate Change and Conflict (The Federal Ministry for the Environment, Germany, 2002).; See Jon Barnett & W. Neil Adger, Climate Change, Human Security, and Violent Conflict 1 Global Environmental Change and Human Security News 1, 1-3 (2006).; See Halvard Buhaug, Nils Petter Gleditsch & Ole Magnus Theisen, Implications of Climate Change for Armed Conflict (PRIO & World Bank, 2008).571Larry A. Swatuk, Peace Parks in Southern Africa 3 (2005).572E. Koch, Nature Has the Power to Heal Old Wounds: War, Peace and Changing Patterns of Conservation in Southern Africa, in South Africa in Southern Africa: Reconfiguring the Region (D. Simon ed., 1998).; Id.573See e.g., Albie Sachs, Truth and Reconciliation, 52 S.M.U. L. Rev. 1563 (1999).; Alfred Allan & Marietjie M. Allan, The South African Truth and Reconciliation Commission as a Therapeutic Tool, 18 Behav. Sci. Law 459, 459-477 (2000).574James L. Gibson, Does Truth Lead to Reconciliation? Testing the Causal Assumptions of the South African Truth and Reconciliation Process, 48 American Journal of Political Science 201, 201 (Apr. 2004).575E.g., the Japanese Governments reluctance to acknowledge wartime atrocities, such as the kidnapping, coercion and forced transport of jugun ianfu or “Comfort Women” from occupied territories (such as Korea, the Philippines, and China), who became sex slaves for the Japanese Military during World War II or the Rape of Nanjing have not helped regional relations or perceptions of Japan in Asia. Yoshiko Nozaki, Feminism, Nationalism, and the Japanese Textbook Controversy Over “Comfort Women, in Feminism and Antiracism: International Struggles for Justice 170 (Twine & Blee eds., 2001).; Yoshiaki Yoshimi, Comfort Women: Sexual Slavery in the Japanese Military During World War II (Suzanne Page 114 of 233 Copyright ©2010 by Elaine Hsiao
  • 115. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010trust and building amicable relations so that more meaningful cooperation may occur. By engaging in atruth and reconciliation type process, communities can confront the atrocities and collaboratively moveforward, pioneering a new dynamic based on interrelation and shared experiences – a culture of peaceand collaborative environmental stewardship. Just as peace parks created in times of peace might build upon a shared appreciation for Nature,peace parks can also be established in times of post-conflict peacebuilding to express appreciation forNature. Nature can often provide a refuge for civilians, protecting them from the wraths of armedconflict.576 Civilians attacked by the armed combatants may flee into the bush seeking safety.Sometimes a temporary refuge can turn into more long-term encampment. When the Karen fledBurma/Myanmar for the mountain forests on the border with Thailand, they ended up settling there forover four decades.577 Before there is external support (from foreign governments or humanitarian aidorganizations), refugees or internally displaced peoples rely heavily on natural resources for survival. 578Oftentimes refugees develop a “close respect for nature and understanding of natural resourcemanagement.”579 That dependence and relationship with Nature does not end when populations emergefrom conflict. Economic and social restoration of nations emerging from conflict will require naturalresources to fuel development. This relationship between nation-state well-being and environmentalwell-being can be highlighted in a peace park framework so that new stewardship paradigms are forgedthat respect human dependencies on natural systems. Post-conflict peace parks should take specialadvantage of the appreciation for Nature developed by displaced peoples and promote continued closerelationships between humans and Nature as communities are rebuilt. Peace parks in post-conflictpeacebuilding settings could even be declared expressly as an homage to Nature as a refuge andsupport-system for all humanity.Initiating a peace park process Perhaps the most powerful thing that a peace park can offer is its capacity to transform, whetherit be from division to collaboration, conflict to peace, or degradation to stewardship, etc. Globally,there is significant potential for generating such transformations through transboundary peace parks. Ina 2007 inventory of transboundary protected areas by the United Nations Environment ProgrammeWorld Conservation Monitoring Centre (UNEP-WCMC), 227 internationally adjoining protected areas(IAPA) made up of at least 3,043 individual protected areas or internationally designated sites were OBrien trans., Columbia University Press, 2002).; Tessa Morris-Suzuki, Japan Focus, Mar. 8, 2007, available at http://www.japanfocus.org/-Tessa-Morris-Suzuki/2373 (last visited June 11, 2010).; Peter J. Brown, Japan, China Still Fighting Over History, Asia Times Online, Feb. 11, 2010, available at http://www.atimes.com/atimes/China/LB11Ad01.html (last visited June 11, 2010).576Jeffrey A. McNeely, supra note 542, at 161.577United Nations High Commissioner for Refugees [UNHCR], Thailand: Global Needs Assessment, 2001, http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e489646.578IUCN & UNHCR, Forest Management in Refugee and Returnee Situations 8 (Aug. 2005).579Id. Page 115 of 233 Copyright ©2010 by Elaine Hsiao
  • 116. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 580identified. There are also many other transboundary landscapes and de facto conservation areas thatmay not satisfy the IUCN definition of a transboundary protected area (TBPA) or an IAPA that are notincluded in this inventory.581 Each of these has the potential to be recognized as a transboundary peacepark. The process of transformation from landscape to protected area to peace park takes a great idea, asome initiative and a lot of work. Ideally, a peace park process is locally specialized to suit regionalcircumstances and cultural relativism. It should also be a broadly participatory, collaborative andadaptive process. Although peace parks have largely been created in ad hoc fashion around the world,this section will explore some commonalities in peace park processes and attempt to outline astreamlined approach based on an adaptive project cycle.Peace park project cycle Everything starts with an idea. Then, with the initiative of a few antagonists, or many, an ideais tested. If it withstands scrutiny, it may come to fruition. A useful methodology proposed by Truebaand Marco that illustrates this process is provided below:580UNEP-WCMC, Transboundary Protected Areas Inventory 1 (2007).581The 2007 Transboundary Protected Areas Inventory includes only TBPAs that fit the IUCN definition and the IAPA definition. Id.; IUCN definition: “An area of land and/or sea especially dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and managed through legal or other effective means.” It must be designated under national legislation or by international or regional conventions and be included in the World Database on Protected Areas. Id., IUCN Commission on National Parks and Protected Areas & UNEP- WCMC, Guidelines for Protected Area Management Categories 187 (1994).; IAPA definition: protected areas that “physically meet or nearly meet across international boundaries.” Dorothy C. Zbicz, Transfrontier Ecosystems and Internationally Adjoining Protected Areas 2 (1999). Page 116 of 233 Copyright ©2010 by Elaine Hsiao
  • 117. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Figure 3.4 Project cycle and the application of its different methodologies in its different phases582Each of the phases identified above involves the following:583 Project Idea. A creative force that results from the identification of a problem, the582Jorge Figueroa, Jorge Bentin & Pablo Martínez de Anguita, Social Analysis: Field Scoping for the Viability of a Transboundary Protected Area Project Honduras (La Botija) and Nicaragua (Tepesomoto-La Pataste), in La Conservación en las Fronteras: El Ciclo de Proyectos Aplicado a la Creación del Parque Binacional “Padre Fabretto” 55, 62 (Pablo Flores Velásquez, Pablo Martínez de Anguita & Elaine Hsiao eds., 2007).583Pablo Martínez de Anguita, Metodología, in La Conservación en las Fronteras: El Ciclo de Proyectos Aplicado a la Creación del Parque Binacional “Padre Fabretto” 3, 4-5 (Pablo Flores Velásquez, Pablo Martínez de Anguita & Elaine Hsiao eds., 2007). Page 117 of 233 Copyright ©2010 by Elaine Hsiao
  • 118. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 seizing of an opportunity or the satisfaction of a necessity. It is important to clearly define the objectives of the project in this premier phase through dialogue and imagination in an interdisciplinary group. At this point, the idea can reach one of three fates: (1) archival for future reconsideration when the context is more favorable, (2) rejection because it is not considered viable, or (3) continue on to the Pre-feasability or Pre-viability Study phase in order to obtain more information. Pre-feasability or Pre-viability Study. A preliminary level of information based on generally documented information produced by third parties (e.g., public administrators, statistical institutions, international organisms, clearinghouses, universities, etc.). An assessment of the pre-viability of a TBPA should include and will depend on a variety of components, inter alia, the quality of natural resources in the area, a socio-political analysis identifying potential conflicts and the identification of interests and perspectives of local communities regarding the project. In its conclusion, a decision should be made as to whether the idea is feasible or whether there is an alternative strategy. The project can then follow the fates described earlier: archival, rejection or continuation (to the Feasability or Viability Study phase) in order to obtain more information and minimize uncertainties. Feasability or Viability Study. A much more detailed study based on primary information with a higher degree of certainty and quantification of the costs and benefits of the project over time. It should include the following studies: technical and biophysical, socio-economic, territorial and land use, hydrologic, legal, economic (e.g., ecotourism and silviculture), undertaken with stakeholder participation. The conclusion of this study should reach a decision regarding the fate of the project – archival, modification, rejection or continuation (towards approval in a defined project). Defined Project. An integration of technical, financial, socio-economic, environmental and legal documents guaranteeing that investment in the project will have maximum returns. The quality and definition of the studies and proposals should be complete, forming the basis of a final proposal. Financing. A study of financing options for the project, including from international and national organizations, governmental or non-governmental. The final decision should assure adequate and stable internal financing (so as to not rely completely on external financing) supported by public and private resources. Project Execution. A mobilization of resources to transforming the idea into reality through the undertaking of projects, for which the previous studies have determined that Page 118 of 233 Copyright ©2010 by Elaine Hsiao
  • 119. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 adequate conditions apply. Operation and Management. A clearly defined administrative bodywith the necessary authorities to make decisions regarding the project and its management, and with the necessary resources to maintain its operation, should have been identified in the pre- viability and viability studies. This phase begins with the investment of resources and ends with the useful life of the project. Continuous Evaluation.584 An evaluation of the results of the project and whether or not they are in compliance with the original objectives of the project. This should be verifiable through quantifiable measures and indicators so that results can be accurately compared.It is important that a peace park process is based on an adaptive process that allows flexibility forperiodical evaluations and adjustments as necessary. Throughout the TBPA formation process, studiesof the area and evaluations of the costs and benefits of the protected areas must be ongoing andcontinuous in order to timely assess the needs and achievements of the peace park. The process, asillustrated in the diagram, must be cyclical and on-going. A peace park process should also be broadly participatory. The stakeholders or beneficiaries ofthe protected areas must be identified early on and included in all steps of the process in order to ensurethat their interests are adequately considered and that benefits return to those most directly affected andinvolved. This includes identification of individuals and organizations (public and private) with thepower to act, both in making decisions and in implementing them. In some places, this may require theparticipation of third party intermediaries capable of assisting in the brokering of the agreement.Proponents of a peace park process The Great Oz behind a peace park process might be a few people or many, depending on thelevel at which the idea is being promoted. Typically, peace parks have tended to be high-levelinitiatives pushed by a few national elites. However, a peace park initiative can also arise from lower-levels of government or community organization. A process may also be driven by an external actor,such as an international NGO, regional institution or development bank. A model depicting aframework for transformation of international social conflict helps to illustrate the different levels ofpossible peace park antagonists:584This was originally listed as “Ex-Post” Evaluation, but in order to reflect continuous evaluation process of an adaptive project cycle, it has been changed here to “Continuous Evaluation.” Page 119 of 233 Copyright ©2010 by Elaine Hsiao
  • 120. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Figure 3.5 Modeling International-Social Conflict: a Framework for Transformation585This model is based on a multi-track dynamic that involves the participation of various sectors ofsociety at all levels, local to international.586 Civil society and social organizations represent theGrassroots level, while Middle-level leaders are those who link civil society to the societal elites, orTop Leaders.587 They can include international NGOs, religious institutions, academics and privatesectors.588 At the top are international and regional forces, such as governments and InternationalGovernmental Organizations (IGOs), the United Nations (UN), development banks (such as the WorldBank and regional development banks) and other international financial institutions, global or regionalthink tanks, etc.589 More often than not, peace parks have been created at high political levels between nationalelites, State to State or between governments. The idea is originally adopted by a political elite, anagency head, minister, Head of State or Head of Government and then communicated to their cross-585Oliver Ramsbotham, Tom Woodhouse & Hugh Miall, Contemporary Conflict Resolution: The Prevention, Management and Transformation of Deadly Conflicts 28 (2nd ed., Polity Press, 2005).586Id. at 25.587Id. at 22-27.588Id. at 26.589Id. Page 120 of 233 Copyright ©2010 by Elaine Hsiao
  • 121. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 590border analog or counterpart. If in accord, these high-level actors will produce a formal agreementconducted per official diplomatic norm, typically involving the Foreign Ministers. This agreement isapproved and signed according to national protocol dictated by domestic laws, making it a bindingtreaty agreement. This is the peace park process undertaken in Parque Internacional La Amistad(PILA) between Costa Rica and Panama. As of 1970, the Planning and Economic CooperationMinistries had decided that they would work together to promote integrated development along theirborder.591 The idea of a peace park was adopted at a high political level and a declaration signed by thePresidents after a joint visit to the Talamanca border region.592 After having been circulated through theappropriate political channels in each country and back and forth through the usual diplomaticexchanges, this declaration was given effect in 1982 and ratified in 1992.593 Less practiced and talked about are lower-level locally-based initiatives. This is the rare casewhere the idea surges from the Grassroots level in territory itself. It may come from field staff, as wasthe case with the rangers in WGIPP, 594 or from local organizations with an interest in jointly protectingthe territory, such as the Fabretto Foundation on the border of Honduras and Nicaragua. 595 Rangers inIAPAs may naturally collaborate on environmental issues that challenge each of their respectivejurisdictions, such as control of forest fires, plagues and illegal natural resource extraction or poaching.They may propose the idea to higher levels of political authority, so that their collaborative effortsmight be officially recognized.590Trevor Sandwith et al., supra note 19, at 7, 9.591Id. at 10.592The two presidents met in the border region and shared in a helicopter ride surveying the territory. Upon their descent to land, the presidents and their accompanying personnel drafted a joint declaration, establishing their intent to create Parque Internacional La Amistad (PILA). Telephone interview with Alvaro Ugalde, supra note 530 (Alvaro Ugalde was with the President of Costa Rica and helped to develop the joint declaration that came out of this meeting of minds in the Talamancan mountain forests).; See Decreto No. 13324-A, supra note 413, at para 2 (Que el señor Presidente de la República de Costa Rica, Licenciado Rodrigo Carazo Odio y el Excelentísimo señor Presidente de la República de Panamá, doctor Aristides Royo, se reunieron el 3 de marzo de 1979, en la región fronteriza de la Cordillera de Talamanca, con el objeto de continuar la política de cooperación en el área fronteriza, y como gesto simbólico de las excelentes relaciones de amistad y fraternidad entre los dos pueblos y Gobiernos, ambos dignatarios intercambiaron impresiones sobre el alto valor científico y ecológico de la región, y coincidieron en la necesidad de conservar y preservar la flora y la fauna de la misma, para mantener el equilibrio ecológico y fundamentalmente los recursos hidrológicos del area fronteriza y que, para tal efecto, los dos gobernantes decidieron y firmaron una declaración conjunta para crear el parque internacional de la Amistad: Costa Rica- Panamá, en ambos lados de la frontera).593Trevor Sandwith et al., supra note 19, at 10.594Kootenai Brown (First Superintendent of Waterton Lakes National Park) and Henry “Death on the Trail” Reynolds (U.S. Ranger in Glacier National Park) would participate in joint patrols and discuss strategies for dealing with forest fires and predator management policies. They would share many of their scientific findings and tell each others stories during park interpretations with tourists. U.S. NPS, supra note 253.; U.S. NPS supra note 254.595There is currently an initiative to create a peace park across the mountain forest border region of Honduras and Nicaragua. This idea arose mainly through investigators working with the Fabretto Foundation in development of a model forest for sustainable forestry. This initiative will be explored in greater detail in the next chapter as a Case Study on the possible application of the Patchwork Peace Park model in a mountain forest border region in Central America. Page 121 of 233 Copyright ©2010 by Elaine Hsiao
  • 122. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Cooperation between public officers, even field staff, across international borders may beconsidered a violation of the national governments authority. External affairs and relations aregenerally understood as activities within the purview of State authorities. National constitutions oftendelegate foreign relations and affairs to the Heads of State or Government and their ministries oragencies. Officially speaking, a joint science fair by elementary schools just kilometers away fromeach other sitting on opposite sides of a shared border, may require an agreement between theMinistries of Education (and any other relevant authority) facilitated by the Foreign Ministries. All ofthis excess bureaucracy can stymy an enriching experience of information and cultural sharing. Onoccasion, we will find that local actors will disregard the red tape, choosing instead to work with eachother. If a natural cross-border dynamic already exists, this will be easily accomplished. Governmentrecognition of such activities may occur ex-post facto to support the continuation and expansion ofthese localized international cooperations or they may occur de facto by omission (inaction, neitherapproving nor preventing the activities). A natural cross-border dynamic can also transcend other levels of governance to involve localor regional governments, as well as indigenous governments, as primary proponents of a peace parkinitiative. Governance of any territory of sufficient size will involve multiple layers of government. Ina republic, layers of governance can be divided between regions, provinces and municipalities. In afederation, powers of governance are divided between the federal government, state governments andlocal governments. Muddled into these layers of government are also the recognized and unrecognizedgovernance systems of many indigenous nations around the world. The United Nations Declaration onthe Rights of Indigenous Peoples (hereinafter UNDRIP) protects the rights of indigenous peoples, mostimportantly their right to conservation and to “the lands, territories and resources which they havetraditionally owned, occupied or otherwise used or acquired.”596 Other States are required to negotiatewith self-determined and autonomous systems of indigenous governance, recognizing indigenouscustoms and norms, and honoring the agreements that are made between them. 597 A peace park processcan be initiated at any one of the various levels of governance, between the various systems of596Relevant rights enshrined in the UNDRIP include, inter alia: Article 4: the right to self-determination, autonomy or self-government; Article 18: the right to participate in decision-making Article 19: consultation in good faith with their own representative institutions to obtain their free, prior and informed consent; Article 26: protects indigenous rights to lands, territories and resources; Article 27: mandates States to implement a process for recognizing indigenous systems of governance and land tenure; Article 29: the right to conservation of indigenous lands; Article 30: the right of indigenous lands and territories to be free from military activities; and Article 37: the right to the recognition, observance and enforcement of treaties, agreements or other constructive arrangements. Human Rights Council, Sept. 7, 2007, United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/61/L.67 (Sept. 7, 2007).597Id. Page 122 of 233 Copyright ©2010 by Elaine Hsiao
  • 123. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010governance, and by any of these locally-based actors. The subsidiarity principle would supportdeclaration of peace parks and stewardship of peace park territories, marine or terrestrial, at these morelocalized levels of governance.598 External actors frequently play a role in high-level or local-level peace park processes.Externals can include foreign governments, international NGOs, international developmentorganizations (including development banks), etc. International actors are often key players in a peacepark process. Historically, organizations such as the IUCN, Conservation International, the WorldWildlife Fund, the Nature Conservancy and the Peace Parks Foundation have been integral in lobbyinggovernments to declare TBPAs and in building local and public capacity for the management of thoseareas. In southern Africa, the Peace Parks Foundation has been integral in the drafting and negotiationof transboundary cooperation agreements599 and in Central America, the IUCN, ConservationInternational and the Nature Conservancy have been key capacity-builders of border communities. 600One may be hard pressed to find an example of a peace park that has not benefited from an externalintervention of some sort, whether an outside actor is the first to propose the idea, helps to promote it,or helps to fund it. Since the creation of a transfrontier peace park is an international project, it requires more thanjust domestic action on the part of one State to officially establish the TBPA for peace and oftentimes it598The Subsidiarity Principle supports decision-making at the most relevant level possible, relegating it to the most localized or lowest level, unless circumstances should require a more coordinated effort at a higher level. Higher levels of government are to act in subsidy or support to the activities of local actors. See Paolo G. Carozza, Subsidiarity as a Structural Principle of International Human Rights Law, 97 Am. J. Intl L. 38 (Jan. 2003).; It is a fundamental principle of the European Union, enshrined in the Treaty of Maastricht. Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C191).599See Peace Parks Foundation, Peace Parks Programmes: Projects, 2008-2010, http://www.peaceparks.org/Programmes_1030000000_25_0_0_0_25_Projects.htm (the Peace Parks Foundation works with regional governments to support the creation of Transfrontier Conservation Areas (TFCAs). Their activities or interventions are currently focused on ten different TFCAs in southern Africa. “The interventions can range from facilitation of stakeholder meetings, the funding of feasibility studies, the funding of critical posts such as that of international coordinators, as well as getting involved with physical project implementation and park development if the situation requires.”).600The IUCN Mesoamerican Regional Office [ORMA] programme, Alianzas, is dedicated specifically to working with communities in border regions to conserve and sustainably use their natural resources. See IUCN, Programa Alianzas, Nov. 18, 2008, http://www.iucn.org/es/sobre/union/secretaria/oficinas/mesoamerica/nuestro_trabajo/unidad_de_equidad_social/program a_alianzas/.; Conservation International and The Nature Conservancy have worked extensively with communities in transboundary biological corridor initiatives, including in the buffer zones of Parque Internacional La Amistad. See e.g., John Tidwell, Conservation International, The True Wealth of Nations: How Costa Rica Prospers by Protecting its Ecosystems, 2010, http://www.conservation.org/FMG/Articles/Pages/wealth_of_nations_costa_rica.aspx (CI worked closely with local communities around the La Amistad Biosphere Reserve through a project called AMISCONDE).; See also e.g., The Nature Conservancy, Historias de Éxito: La Amistad Parque Internacional: Bocas del Toro, Costa Rica y Panamá, un Lugar Magnífico y Extenso, Sept. 29, 2008, http://www.parksinperil.org/espanol/quienessomos/exitos/art18185.html. Page 123 of 233 Copyright ©2010 by Elaine Hsiao
  • 124. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010requires the facilitation of outside parties to help spur along the momentum for such collective action.In the Israel-Jordan transboundary peace park, Friends of the Earth Middle East and EcoPeace wereboth involved in the joint efforts that resulted in a mayoral MOU declaring the peace park. LaCordillera del Condor, the peace park between Ecuador and Peru, is an example of a high-level peacepark processes initiated at the instigation of outside actors. The idea was proposed by IUCN PresidentYolanda Kakabadse (Ecuadors Minister for Environment at the time) during a peace negotiationbrokered by five other governments.601 WGIPP between Canada and the U.S. was strongly supportedby Rotary International, as is the decades-long proposal to create a peace park along the Mexico-U.S.border. The International Gorilla Conservation Programme made up of three international NGOs(African Wildlife Foundation, Fauna and Flora International, and the World Wildlife Fund) is a majorstakeholder in the Transboundary Secretariat administering the CAR TFPA Network between the DRC,Uganda and Rwanda. Experts, scientists and scholars from universities, regional or national aid and developmentorganisms (e.g., USAID) and development banks (e.g., the World Bank, the African DevelopmentBank) can also lend their expertise and resources to a peace park initiative. They may participate in thescoping studies and audits, biological surveys producing inventories of natural resources and species offlora and fauna, the proposal of resource management plans, and project proposals, etc. Internationalorganizations frequently fund or provide technical support for, inter alia, the development ofmanagement plans, capacity building for stewardship and sustainable development, or meetings andworkshops. The success of a peace park process may depend heavily on the availability of sustainedfinancial support. USAID and the World Bank have been financial backers of transboundaryconservation around the world, including the South African Development Community, where the tensouthern African peace parks are located.602 Participation of all stakeholders across all levels (local, regional, State and international) ofgovernance in peace park processes supports a Just Social Peace. Most commonly, peace parks havebeen created at high political levels with the support of middle-level actors. Local-level stakeholdershave not always participated in these processes, nor were they consulted as high-level decisionsaffecting their territories were made. Just Peace and Social Peace require that we expand peace parkprocesses to become a much more meaningful and collaborative experience. Social justice alsodemands that peace park agreements are negotiated with indigenous communities on a basis ofequality. Cooperation agreements between the governments of Costa Rica and Panama should reachout to include, as equals, the indigenous communities living in and around PILA. The same can be saidof WGIPP and resident indigenous tribes, such as the Blackfoot or Blackfeet (as they are known inCanada and the U.S. respectively) and the Kootenai. In the CAR TFPA Network, the TransboundarySecretariat has allowed inclusion of international NGOs united under the auspices of the IGCP intransboundary collaborative conservation, but does not include an equally elevated status for theregions prior indigenous inhabitants (such as the Batwa). Based on the three case studies examined in601Trevor Sandwith et al., supra note 19, at 9.602Id. at 12. Page 124 of 233 Copyright ©2010 by Elaine Hsiao
  • 125. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010the previous chapter, we observe potential for a more Just Social Peace to be developed intransboundary peace parks. As per the Framework for Transformation depicted in the Modeling ofInternational Social-Conflict above, this broader participatory multi-level dynamic is conducive toconflict transformation towards Social Peace and in accord with human rights and efficiencies of thePrinciple of Subsidiarity, should be promoted in all peace park processes.Legal Form: The Small Print Peace parks are a paradigm founded upon the ideas of cooperative conservation despite bordersand the rule of law. It is a model shaped by the international and environmental principles codified inso many treaties, conventions, declarations and charters signed by civilized nations around the world. Page 125 of 233 Copyright ©2010 by Elaine Hsiao
  • 126. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 603 604Principles of international peace and security, international cooperation, conservation and the rightto a healthy environment,605 a right to sustainable development founded on social, economic andecological pillars,606 as well inter- and intra-generational equity, 607 and the recognition of environmentalissues as the common interest or common concern of humankind, 608 have been recognized ininternational agreements and declarations, such as the UN Charter, the Stockholm Declaration of theUN Conference on the Human Environment (Stockholm Declaration), the Rio Declaration onEnvironment and Development (Rio Declaration) and its Agenda 21, the World Charter for Nature andthe Earth Charter. Universal norms, such as “do no harm to your neighbor” and access to informationand due process in the environmental context are captured in the Convention on Environmental Impact603The Preamble of the UN Charter sets forth the primary goals and means for drafting and adopting such a charter and creating the United Nations (UN). Pivotal to these declarations is the uniting of all nations in order “to maintain international peace and security.” Article 1, Purposes and Principles of the UN Charter states: “The Purposes of the United Nations are: • To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace; • To develop friendly relations among nations based on respect for the principle of equal rights and self- determination of peoples, and to take other appropriate measures to strengthen universal peace.” All activities by the 192 Member States to the UN must be in accordance with principles of the UN Charter “so far as may be necessary for the maintenance of international peace and security,” making international peace and security the overarching priority. Charter of the United Nations, pmbl, art. 1(1) & art. 2(6), June 26, 1945, 1945 WL26967 (1945) [hereinafter UN Charter].; The Rio Declaration on Environment and Development (Rio Declaration) notes explicitly the link between environment and peace in its Principle 25 – “Peace, development and environmental protection are interdependent and indivisible” Rio Declaration, supra note 154, at prin. 25.; The World Charter for Nature was adopted by the UN in 1982 and it reaffirms that one of the most fundamental purposes of the UN is “maintenance of international peace and security.” It specifically identifies the environmental security linkage between scarce resources and conflict, as well as between conservation and peace by noting that “competition for scarce resources creates conflicts, whereas the conservation of nature and natural resources contributes to justice and the maintenance of peace and cannot be achieved until mankind learns to live in peace and to forsake war and armaments.”World Charter for Nature, pmbl, Oct. 28, 1982, 22 I.L.M. 455 (1983).; The Earth Charter calls upon the Earth community to bring forth “a culture of peace,” stating as one of its core principles, “democracy, nonviolence and peace.” This means promotion of a “culture of tolerance, nonviolence, and peace” per the following: a. Encourage and support mutual understanding, solidarity, and cooperation among all peoples and within and among nations. b. Implement comprehensive strategies to prevent violent conflict and use collaborative problem solving to manage and resolve environmental conflicts and other disputes. c. Demilitarize national security systems to the level of a non-provocative defense posture, and convert military resources to peaceful purposes, including ecological restoration. d. Eliminate nuclear, biological, and toxic weapons and other weapons of mass destruction. e. Ensure that the use of orbital and outer space supports environmental protection and peace. Page 126 of 233 Copyright ©2010 by Elaine Hsiao
  • 127. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Assessment in a Transboundary Context (hereinafter the Espoo Convention) and the Convention onAccess to Information, Public Participation in Decision-Making and Access to Justice in EnvironmentalMatters (hereinafter the Aarhus Convention). 609 Many of these principles are then transposed andreiterated in regional conventions or national legislation. 610 These principles are well-intended andwell-accepted, as evinced by the many legal documents in which they are scribed. However, if conventions and declarations between nations are not implemented or enforced,they can be seen as mere expressions of unbinding aspirations. Words on paper. International law onlyworks when it physically attaches its principles to real life implements; States must walk the talk. It isup to independently participating States to transpose policies, programs or initiatives to tangibly fulfill f. Recognize that peace is the wholeness created by right relationships with oneself, other persons, other cultures, other life, Earth, and the larger whole of which all are a part. Earth Charter Commission, The Earth Charter, pmbl & art. 16 (2000).604UN Charter, supra note 602, at art. 1(3).; The Stockholm Declaration supports collaborative conservation, with “all sharing equitably in common efforts.” Stockholm Declaration of the UN Conference on the Human Environment, art. 7, June 16, 1972, 11 I.L.M. 1416 (1972) [hereinafter Stockholm Declaration].; International cooperation is supported in Principle 7 of the Rio Declaration, which mandates that “States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earths ecosystem.” Rio Declaration, supra note 154, at prin. 7.; According to the World Charter for Nature, one of the fundamental purposes of the UN is “the achievement of international cooperation in solving international problems of an economic, social, cultural, technical, intellectual or humanitarian character.” World Charter for Nature, supra note 602, at pmbl.605Stockholm Declaration, supra note 603, at ch. I(2).; Rio Declaration, supra note 129, at prin. 1 (humans are “entitled to a healthy and productive life in harmony with nature.”).; World Charter for Nature, supra note 602, at pmbl. (“mankind is part of nature and life depends on the uninterrupted functioning of natural systems,” indicating that a “healthy and productive life” would require healthy ecosystems.).; Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters [hereinafter Aarhus Convention], pmbl, June 25, 1998 (1998) (recognizes “that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself.,” and that “every person has the right to live in an environment adequate to his or her health and well-being.”).606Stockholm Declaration, supra note 603, at pmbl., ch. I(2) & art. 8 (the goal to “defend and improve the human environment for present and future generations has become an imperative for mankind – a goal to be pursued together with, and in harmony with, the established and fundamental goals of peace and of world-wide economic and social development.”).; Johannesburg Declaration on Sustainable Development: From Our Origins to the Future, art. 5, Sept. 4, 2002, (2002) [hereinafter Johannesburg Declaration] (States “assume a collective responsibility to advance and strengthen the interdependent and mutually reinforcing pillars of sustainable development – economic development, social development and environmental protection ).607New Delhi Declaration of Principles of International Law Relating to Sustainable Development, pmbl (2002) (“fair distribution of benefits resulting [from sustainable development], with due regard to the needs and interests of future generations.”).; Intragenerational equity is the meeting of basic needs of all peoples currently on Earth and the extending of equitable opportunities to “satisfy their aspirations for a better life.” World Commission on Environment and Development, supra note 1, at 44. Intergenerational equity stresses the goal of achieving intragenerational equity sustainably, with continuity into the Page 127 of 233 Copyright ©2010 by Elaine Hsiao
  • 128. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010their duties and obligations, establishing trends in State practice that comply with international andenvironmental principles codified in mutually agreed upon conventions. This is particularly true inborder areas, where interstate tensions can often come to friction or where remote communities falloutside of the control of central governments. In these situations, the acts of States may be inconsistentwith international principles enshrined in international law, creating evidence of a contradictorycustomary law. Alternatively, peace parks can be used as a geophysical locus for implementation andenforcement of international principles and accords in a show of State practice tending towards ergaomnes norms supported by opinio juris. Peace parks are a paradigm for international cooperationwithin the context of two fundamental goals, peace and conservation. Its principles are the principlesof humanity reflected in their shared words, declarations, charters, treaties and conventions; all it needsis recognition and implementation. It is important that these erga omnes norms of international law and international environmentallaw be built upon when outlining the legal framework of a transboundary peace park. The legalframework establishing the peace park sets forth the common vision (conservation, cooperation andpeace), fundamental principles or guiding principles, an institutional framework for protected areamanagement and decision-making processes. The organic document provides a constitutional systemfor the peace park that will set the tone for future cooperative agreements and activities. Once a peacepark is created by bilateral or multi-lateral treaty, it becomes binding upon the parties to fulfill theduties stipulated in the agreement. The binding effect of a treaty is reflected throughout the ViennaConvention. In Article 11, States party consent “to be bound by a treaty” by “signature, exchange ofinstruments constituting a treaty, ratification, acceptance, approval or accession, or by any other meansif so agreed.”611 Article 26 reiterates that, “every treaty in force is binding upon the parties to it andmust be performed by them in good faith.”612 Recognition of pacta sunt servanda as an internationalcustomary principle is found in the preamble to the Vienna Convention on the Law of Treaties, whichnotes that “the principles of free consent and of good faith and the pacta sunt servanda rule areuniversally recognized.”613 As an international customary principle, there is no derogation from this jus future. Its goal is to ensure provision for the “needs of the present without compromising the ability of future generations to meet their own needs.” Id.; Johannesburg Declaration, supra note 605, at art. 3 (fundamental right of the children of today and the unborn generations of tomorrow to “inherit a world free of the indignity and indecency occasioned by poverty, environmental degradation and patterns of unsustainable development.”).; Stockholm Declaration, supra note 603, at prin. 1 & 2.; Rio Declaration, supra note 154, at prin. 3 & 20-22.608E.g., Convention on Biological Diversity, art. 8(m), June 5, 1992, 1760 U.N.T.S. 79 (1992) [hereinafter CBD] (affirming that “the conservation of biological diversity is a common concern of humankind.”).609Convention on Environmental Impact Assessment in a Transboundary Context [hereinafter Espoo Convention], Feb. 25, 1991, 30 I.L.M. 802.; Aarhus Convention, supra note 604.610For example, States with modern constitutions have been incorporating a peoples right to a healthy environment, imposing a proactive duty upon the Government and all citizens to uphold and protect this right. E.g., Constituição Federal [C.F.][Constitution] art. 225. (Brazil).611Id. at art. 11.612Id. at art. 26.613Vienna Convention on the Law of Treaties, art. 26, May 23, 1969, 1155 U.N.T.S. 331 (1969) [hereinafter Vienna Page 128 of 233 Copyright ©2010 by Elaine Hsiao
  • 129. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010cogens norm. For this reason, it is very important that principles of international law and internationalenvironmental law be properly outlined in a peace parks legal framework. Principles and obligations agreed to in peace park agreements may also have binding effect onother areas within the territorial jurisdiction of the Parties. This follows one of the most fundamentalprinciples of international law, pacta sunt servanda, whereby treaties are binding upon the partiesparticipating and it is incumbent upon them to perform the treaty in good faith. 614 In fulfilling the termsof the treaty, parties are not allowed to contravene any substantive aspect of the treaty in their otheractivities. For example, Article 18 creates an obligation not to defeat the object and purpose of a treatyprior to its entry into force, and Article 27 prohibits a party from “invok[ing] the provisions of itsinternal law as justification for its failure to perform the treaty.” 615 A treaty entered into by States is tohave effect throughout its entire territory.616 For a treaty establishing a transboundary peace park, theobligations mandatory include at a minimum, conservation, cooperation and peace, but these principlesmay have an effect beyond the delineated boundaries of the PAs and extend to guide the policies of thenations parties. Two countries with a jointly managed transboundary peace park along theirinternational border cannot wage war along another section of their border, because this defeats thepeace park treaty requirement that participating nations resolve disputes through pacific means. Many peace parks are created through agreements between governments or competentauthorities in each of the relevant jurisdictions. Formal multilateral agreements signifying the initialdeclaration of a peace park can take the form of a convention, memorandum ofunderstanding/agreement (MOU/MOA) or a peace agreement (when arising out of peace negotiationsending a conflict). A joint convention or treaty between the Parties can set up an entire legalframework for a peace park, much like a park “constitution,” or it can merely declare a delineatedterritory as a transboundary peace park.617 An MOU/MOA can also provide the initial steps fordeclaration of a peace park. It might serve merely as a declaration of intent indicating that theparticipating Parties will work together towards the official establishment and subsequent managementof a peace park or it could provide a much more developed framework that declares the peace park andoutlines a management framework.618 Peace accords that come out cease-fire agreements may alsomandate declaration of border peace parks.619 Peace parks can also be created through domesticlegislation. WGIPP was declared purely by national legislation, not by treaty or convention. The twoparks were officially declared part of an international peace park by separate congressional acts in each Convention].614Id. at art. 26.615Id. at arts. 18, 27.616Id. at art. 29.617E.g., Bilateral Agreement between the Government of the Republic of Botswana and the Government of the Republic of South Africa on the Recognition of the Kgalagadi Transfrontier Park, Bots.-S. Afr., Apr. 1999.618E.g., CAR TFPA Network MOU, supra note 323.619E.g., Krakow Treaty between Czechoslovakia and Poland, cited in Mittermeier et al., supra note 14, at 28.; See e.g., Beth A. Simmons, United States Institute of Peace, Territorial Disputes and Their Resolution: The Case of Ecuador and Peru, 27 Peaceworks 20 (Apr. 1999). Page 129 of 233 Copyright ©2010 by Elaine Hsiao
  • 130. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 620of two governments. Regardless of whether the park originates out of international agreements ordomestic legislation, it must be implemented by national laws in each of the participating nations. The IUCN WCPAs guidance document on “Transboundary Protected Areas for Peace and Co-operation” has identified the following options for transboundary agreements:621 • A formal agreement or bilateral/multilateral treaty to bind the parties to long term and accountable cooperation (e.g., The Bilateral Agreement between Botswana and South Africa to recognize the Kgalagadi Transfrontier Park in 2000) • Administrative instruments such as MOUs developed between key agencies, departments or ministries (e.g., the 1986 formal MOU between the nine separate units, three political sub-national jurisdictions and the Commonwealth Government of the Australian Alps National Park) • A more limited agreement to address specific issues, such as a protocol or contingency plans for dealing with emergencies or incidents like oil spills, fire, pest control or search and rescue operations (e.g. the 1986 Co-operative Reciprocal Agreement regarding mutual aid in the areas of fire control and search and rescue in WGIPP) • Informal agreements could be considered by the managers to promote co-operative, friendly relations where the situation is not favorable to more formal agreements • Representation on each others advisory or management bodies (e.g., in Alpi Marittime (Italy) and Mercantour (France) TBPA, a representative from each management authority sits on the advisory committee of the other) • Establishment of a TBPA policy advisory committee that includes stakeholders, especially local community membersThe options listed above range from high-level formalized agreements to lower-level or even informalarrangements. Where conflict or lack of resources make more formal agreements difficult orimpossible, more informal arrangements can be developed and promoted. When the dynamics areappropriate, these can be built upon and advanced. Even peace parks with more formal agreementsshould seek constant evolution towards more integrated management, broader collaboration andinclusion of a greater variety of stakeholders. Peace parks must strive to develop a Culture of Peace, asper Pierre Allans Global Care paradigm, to the fullest extent possible. 2 Suggested best practice guidelines for designing peace park agreements620An Act Respecting the Waterton-Glacier International Peace Park, May 24, 1932, 22-23 George (Can.).; Part of Waterton-Glacier International Peace Park, 16 U.S.C.A. §161(a) (May 2, 1932).621Trevor Sandwith et al., supra note 19, at 30. Page 130 of 233 Copyright ©2010 by Elaine Hsiao
  • 131. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 As mentioned, a peace park agreement can take various form and range from expressions ofbroad intentions to formulations of peace park “constitutions.” In all cases, it should be locallyspecialized so as to accommodate for regional peculiarities. 622 In all cases, it should also hold to aninternational standard that protects universal human and environmental rights and facilitatesmaintenance of International Peace, Social Peace and Environmental Peace. The IUCN WCPApromotes certain Good Practice Guidelines in its publication, “Transboundary Protected Areas forPeace and Co-operation.” Nine major themes developed in the IUCNs guidelines are:623 − Identifying and promoting common values: − Involving and benefiting local people − Obtaining and maintaining support of decision-makers − Promoting coordinated and co-operative activities − Achieving coordinated planning and protected area development − Developing co-operative agreements − Working towards funding sustainability − Monitoring and assessing progress − Dealing with tension or armed conflictThis section focuses primarily on the theme, “Developing co-operative agreements” by elaborating onsome best practice guidelines in analyzing a legal framework for a transboundary peace park in anyregion of the world. The guidelines are developed more specifically for the legal analysis that isassumed to precede the drafting of any cooperative agreements. Cooperative agreements are expectedto then be developed out of a comprehensive analysis and crafted so as to incorporate all of the bestpractice principles. A legal study of the transboundary territory begins with an evaluation of the comparative legalframeworks in each of the participating jurisdictions in such a way as to shape a unifying frameworkfor the entire landscape that upholds universal principles. Where the legal frameworks of theparticipating jurisdictions differ vastly or are lacking in certain areas (e.g., there is no legal system forenvironmental impact assessment in one of the jurisdictions), it may be helpful to draw from sharedregional or international commitments that address the matter. The goal is to provide a uniform legalframework that applies across the peace park, rendering the political boundary as uninhibitive aspossible as stakeholders seek common grounds in landscape stewardship and peace. Considerations ina legal analysis for creating a peace park framework should address at the very least, the followingmatters:622Id. at 17.623Id. at 17-37. Page 131 of 233 Copyright ©2010 by Elaine Hsiao
  • 132. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 (1) Objectives and justification for a peace park (2) Legal basis for establishment of a peace park (3) Scope of agreement (4) Guiding principles and vision for peace park (5) Decision-making bodies and processes (6) Dispute resolution processesEach of these themes is discussed in further detail below.• Objectives and justification for a peace park 1 A peace park agreement should clearly describe the reasons for which a transboundary peace park is being established. The agreement should explicitly state as its primary objectives, conservation, cooperation and peace. The peace park may also seek to achieve other goals, but the three elements of conservation, cooperation and peace, represent a minimum standard. Other objectives may include climate change mitigation and adaptation, sustainable regional development and poverty eradication, or cultural development. • Conservation objectives should secure protection of biodiversity (natural and cultural) and ensure their viability into the future. • Cooperation objectives need to ensure a minimum level of cooperation. A minimum level of communication (Level 1) requires: (1) some two-way communication between the PAs, (2) meetings/communication take place at least once a year, (3) information is sometimes shared, and (4) notification of actions that may affect the other PA sometimes occurs.624 • Peace objectives should seek to build and maintain peace, commit to non-violent dispute resolution, and strive to build a Culture of Peace. If appropriate, the peace park agreement should recognize the history of violent conflict in the region and set forth processes for ensuring that the future peace is Just. 2 The peace park agreement should identify the common values in the territory being protected, such as natural resources, ecosystem services, landscape features or species, cultural heritage, etc. Stakeholders should be involved in the process of identifying the shared values and interests. This is especially true of cultural resources, which may be of particular importance to certain groups and unknown to others.624Id. at 34. Page 132 of 233 Copyright ©2010 by Elaine Hsiao
  • 133. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 3 The common values justifying peace park declaration should highlight the importance of these values for the human communities, particularly in a changing world. 4 It should recognize existing cooperation in the area and explain why the common values identified serve as reasons for further cooperative stewardship. 5 The peace park agreement may also identify international values embodied in the peace park and how the peace park contributes to international objectives. For example, it may highlight the World Heritage or Biosphere Reserve status of the protected area(s) and explain how collaborative conservation of the peace park as a coherent unit will enhance biodiversity protection and resilience to the negative effects of climate change.• Legal basis for establishment of a peace park 1 In peace parks created by treaty or convention:625 • The agreement should identify the legal authority of all parties participating in the agreement. An analysis of the legal authority should look to the constitutional systems of each participating jurisdiction and determine the source of authority to engage in a peace park process and binding peace park agreement (e.g., constitutional authorities to engage in cross-border relations and treaties). • It should identify the appropriate protocol by which the legal agreement may need to be signed, ratified or further implemented through transposition or by implementing statute in each of the participating jurisdictions. In this exercise, the legal analysis should consider the monist or dualist nature of each participating jurisdiction so as to properly outline the procedures for signature, ratification, transposition and implementation of the peace park agreement. 2 In peace parks created by domestic legislation: • A legal analysis should outline the national or sub-national legal framework for peace park creation.625The use of the words treaty or convention are not meant to exclude the possibilities of creating peace parks across sub- national boundaries or between very distinct legal cultures (e.g., a paradigmatic nation-state republic vs. an uncodified indigenous legal system). For this reason, parties are referred to as “Participating Jurisdiction” and not as “State Parties,” for example. The term “constitutional system” is also not meant to preclude a definition that embodies systems of governance at sub- national levels or between different legal traditions. It is inclusive of sources of law outside of the traditional concept of a singular document known as a “constitution.” A constitutional system may include jurisprudence developed over time, as well as customary or uncodified law as practiced by a community. The same understanding applies to the term, “constitutional authority.” Page 133 of 233 Copyright ©2010 by Elaine Hsiao
  • 134. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 • In doing so, it should look to the constitutional authority of each participating jurisdiction and all environmental laws governing the territory. This should include environmental statutes and regulations, jurisprudence, policies and customary practices. • Attention should be given to the legal framework for protected areas systems within the participating jurisdictions. It should identify the relevant authorities or institutions participating in protected areas declaration and administration. It should identify the appropriate protocol for creating (or expanding) protected areas. 3 In all cases, consideration should be given to the legal basis for implementation, duration and enforcement of the peace park agreement. When does the agreement come into force? How might one party enforce the obligations agreed to? Procedures for amendment, extension and termination of the agreement should also be stipulated.• Scope of agreement 1 Identify the Parties and their roles. This should also include identification of affected parties that are not already included in the process. For example, indigenous groups with lands or resources within the delineated boundaries of the park whose rights will be affected by the creation of a peace park. Their participation should be based on the full exercise of all rights enumerated in the UNDRIP. • Define the roles of civil society. Provide for meaningful participation of all stakeholders or interested parties at all stages of the peace park process and future peace park stewardship. Participation of civil society should accord with the Aarhus Convention and other relevant norms and principles. • Identify third parties, such as donors, conservation partners, research institutions, etc., and define the scope of their roles in the peace park process and future peace park stewardship. 2 Clearly delineate the territory/jurisdiction. At this time, areas of special protection can be listed (e.g., nucleus zones) and buffer zones identified. • Address as early as possible any territorial disputes and land tenure or resource (natural and cultural) rights issues that may be pending or might arise in the peace park process. 3 Define areas of cooperation. This can range from limited areas of cooperation to full cooperation. Limited cooperation may be as little as a declaration of intent to cooperate in developing areas of cooperation in the future. Areas of cooperation Page 134 of 233 Copyright ©2010 by Elaine Hsiao
  • 135. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 can include, inter alia, elaboration of joint management plans, joint patrols, participatory biological inventory and mapping studies, control of illegal activities within the peace park, control of forest fires and plagues, control of invasive species, preservation of endangered species, reintroduction of species, environmental education programs, development of sustainable ecotourism and benefits sharing programs, and buffer zone management. 4 The peace park agreement should provide for sustained and sufficient financing and capacity-building, so as to ensure continued stewardship of the peace park into the future. Participating jurisdictions can set up cooperative budgets, explore joint revenue-generating activities and establish mechanisms of equitable revenues sharing. If possible, the peace parks budget can additionally provide for environmental education, capacity-building and sustainable development programs for communities in the peace parks buffer zones. 5 A peace park agreement should develop a reporting mechanism. Monitoring and studies of the area should be on-going in order to assess the success and weaknesses of peace park stewardship. Assessments should be based on clearly defined baseline data and appropriate indicators and benchmarks. Studies should evaluate, inter alia, the effectiveness of management plans and activities, benefits to local communities and ecological well-being. These evaluations should inform the decision-making processes related to the peace park.• Guiding principles and vision for peace park 1 Develop a common vision for the peace park. This can be based on shared resources (e.g., an endangered species of charismatic megafauna or water resources) and/or common values (e.g., cultural heritage, nature appreciation, etc.). It should serve as a unifying and timeless vision for stewardship of the peace park. Focus on values that bring people together and cultivate peace. 2 Select a recognizable symbol that provides a uniting theme for the peace park. Use this logo on peace park materials and on signs around the peace park territory. 3 The peace park should incorporate a framework of principles based on universal norms. The peace park agreement and future stewardship framework should accord with all of the rights and principles of international law, human rights law and international environmental law. International and regional agreements ratified by the participating jurisdictions should be used to ensure protection of the peace park when necessary. 4 The peace park agreement can promote the harmonization of environmental laws, regulations and policies between the participating jurisdictions. Participating Page 135 of 233 Copyright ©2010 by Elaine Hsiao
  • 136. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 jurisdictions should collaborate in the development of common codes and procedures for data collection, park visitors and nature interpretation, border security management, customs and immigration, etc. 5 Parties can jointly seek international recognition for the peace park under international programs, such as the List of World Heritage Sties, the Ramsar Convention, UNESCOs Biosphere Reserve program or UNESCOs Man and the Biosphere program.• Decision-making bodies and processes 1 The peace park should provide for peace park administration or a process to create a peace park management body. This can be done by naming peace park administrators, based on protected areas management authorities in each of the participating jurisdictions. Or it can mandate the creation of a transboundary body (such as a secretariat, commission, committee, working group or task force). 2 When creating a transboundary stewardship body, the following matters should be addressed: management objectives, scope of authorities, decision-making protocols (and processes for handling situations when these protocols are insufficient), procedures for meetings and consultations (i.e, frequency of meetings, public notices and access to information, who may participate and how, recording of minutes, etc.), and methods of review and amendment. 3 The peace park agreement should initiate a coordinated planning process to develop integrated strategic management plans, zoning plans, budgets and joint projects. It can also set forth guidelines on Strategic Environmental Assessment (SEA) or Environmental Impact Assessment (EIA) procedures on each side and across the border. 4 Peace park stewardship should be as collaborative as possible, involving as many stakeholders as possible. If this is too difficult to achieve from the outset, it should be a goal for the participating jurisdictions to work towards. Consultations with other authorities should be maintained regularly so that peace park objectives support and are supported by other policies and programs by the nation(s) involved. 5 The peace park agreement should ensure the meaningful participation of civil society in all decision-making processes. Ensure that measures are in place for the transparency of information and due process regarding all peace park activities and decision-making processes. Participation of civil society should accord with with the Aarhus Convention and other relevant norms and principles. Page 136 of 233 Copyright ©2010 by Elaine Hsiao
  • 137. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010• Dispute resolution processes 1 Identify as early as possible, any actual or potential disputes in the different participating jurisdictions that may affect the peace park process or its future stewardship. Support resolution of these conflicts. 2 The peace park agreement should provide for a non-violent dispute resolution process for any conflicts that may arise after its adoption. Methods of alternative dispute resolution should be sensitive of cultural relativity and honor different traditions or cultural practices/systems for dispute resolution. 3 Develop a contingency plan or initiate a process for elaborating a contingency plan for peace park stewardship in times of armed conflict, emergency or natural disaster. 4 Security personnel should be involved in the peace park process and the drafting of any strategic management plans that are relevant to governance of the peace park so that security activities are harmonious with peace park objectives and programs. It should be understood that security personnel and peace park officers operating in the peace park during times of armed conflict are not taking sides in the conflict. They are acting essentially as “Green Helmets,” working to protect the environment. 5 The IUCN WCPAs publications, “Security Considerations in the Planning and Management of Transboundary Conservation Areas,” and the Draft Code for Transboundary Protected Areas in Times of Peace and Armed Conflict should be incorporated into strategic and contingency plans for the peace park.626 The best practices guidelines outlined above do not purport to be a definitive all-inclusive list.It is meant to provide the beginnings of a minimal standard for developing legal frameworks fortransboundary peace parks promoting conservation, cooperation and peace (environmental peace,social peace and international peace). Hopefully, this will contribute to and stimulate an open andcollaborative process that combines the IUCN WCPAs guidelines for “Transboundary Protected Areasfor Peace and Co-operation” and the Draft Code for Transboundary Protected Areas in Times of Peaceand Armed Conflict, with the guidelines mentioned here, and then advances them in a manner thatunites theory, practice and legal form.Stewardship Frameworks Peace parks do not end with the signing of a celebratory agreement or adoption of legislationdeclaring a new international peace park. Stewardship frameworks may not even be contemplated in626See Braack et al., supra note 171. Page 137 of 233 Copyright ©2010 by Elaine Hsiao
  • 138. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010organic peace park agreements or acts. In some cases they may only transcribe general intentions tocooperate towards collaborative conservation of a shared natural landscape. The initial legaldocument(s) might only dictate that a process take place for creating a stewardship paradigm, sosubsequent agreements will need to be developed in order to create the actual stewardship framework.As a result, stewardship frameworks may be invented piecemeal and will very possibly involve acombination of legal forms. For example, when a peace park is declared by general joint declaration, itcreates an overarching basis for cooperation between governments, ministries or protected areasadministrators, but subsequent MOUs between the agents will be needed to elaborate upon details ofcooperative stewardship. These follow-up agreements can set up a paradigmatic framework for sharedor separate stewardship of the peace park territory, or they may provide substance to the skeleton,dictating collaboration in only certain specified areas of management (e.g., control of forest fires andplagues, outlining specific programs of cooperation or establishing joint task forces and committees).Peace park agreements require a great deal of work to implement and enforce. They need to besupported by an appropriate stewardship framework that is specially developed to accommodate forlocal circumstances and particularities. Peace parks provide a geographic area for experimentation indifferent paradigms as stewards find management practices that best suit their goals and situationalcircumstances. Great freedom exists for peace park proponents in determining how they craftstewardship frameworks. Exercise of this freedom may result in different types of arrangements, whichcan be categorized generally as: (1) separate management, (2) joint management, or (3) limited jointmanagement. The spectrum from separate to joint management reflects different levels of cooperationbetween participating jurisdictions. If a peace park is to truly support Ecological Peace, Social Peaceand International Peace, however, it should strive for greater and greater integration and collaboration.In order to respond to potential environmental changes, it should also be flexible and adaptive.Separate management Perhaps the most common form of peace park stewardship is that which retains separatemanagement regimes divided between the participating jurisdictions. In this situation governmentsmight each declare a new protected area on their respective sides of the border or agree to the inclusionof already existing protected areas in a larger unitary protected area that transgresses the frontier. Thisis officiated through a bilateral or multilateral State-level agreement to declare a singular TBPA forpeace, but each continues to manage their respective PA separately. This creates distinct zones, similarto a North side of the park and a South side of the park, run by different management bodies.Administering authorities meet occasionally to coordinate management plans and activities, but there isgenerally minimal sharing of resources. This is the case in PILA where the peace park is administeredseparately in Costa Rica and Panama and even regionally, differentiating between the Pacific side andthe Caribbean side. A peace park with separate management regimes may not seem ideal for the holisticconservation, cooperation and environmental peace-building goals of a peace park, but it can serve as a Page 138 of 233 Copyright ©2010 by Elaine Hsiao
  • 139. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010useful first step, particularly for regions in which PAs are heavily under-resourced and may only have“paper” protection.627 This allows the management bodies on each side of the border to receive someminimum level of external support to help them initiate the activities needed for developing basicmanagement infrastructure. In some countries, PAs have been legally declared for years but have nomanagement plans or enforcement authorities (i.e., park rangers) to implement conservation projects orenforce against violations within their territories. Such PAs may benefit from a smaller-scale anddecentralized management approach with occasional communication at the higher levels to ensure thatactivities are in conformity with the objectives of the greater unitary TBPA for peace. When sufficientcapacity-building within the individual PAs has occurred, then the parties may wish to move towards ajointly established TBPA for peace with more integrated management.Joint management Less common, but closer to full manifestation of the three peace park objectives (conservation,cooperation and peace), is joint declaration with joint management of a peace park. In this situation,participating jurisdictions agree to establish a new TBPA or to unite currently existing PAs to form asingular entity with much greater exchange of resources and a higher level of cooperation across anincreasingly invisible boundary line. Relevant authorities agree to work together to integratemanagement on both sides of the border under one universally applicable strategic management planimplemented and enforced by a participatory co-management body. Generally, the same administeringagencies or ministries that would govern domestic PAs retain their same roles in the transboundarypeace park. For example, the CAR TFPA Network is administered by a Transboundary CoreSecretariat made up of representatives from the protected areas authorities of each of the threecountries (the DRC, Rwanda and Uganda) and stewardship of the entire transboundary corridor isdetailed in the Ten Year Transboundary Strategic Plan.628 As a less integrated alternative, some TBPAs for peace create international commissions or taskforces delegated the necessary authorities to make administrative decisions regarding only specificissues within the peace park. They may maintain largely separate management for the protected area,but engage in joint working groups focused on topics of transboundary importance, inter alia, bordersecurity, control of transboundary environmental crimes or socio-economic development throughecotourism. WGIPP is an example of a peace park with separate management, but which has created627“Paper” parks are those which receive little or no protection beyond the paper on which the decree is written declaring the area legally protected. This situation can occur where administering authorities are faced with challenges such as the absence or lack of resources (human, monetary, technical) for management operations or enforcement against PA violations, corruption, lack of community consensus supporting the PA designation or lack of public information regarding its PA status, etc. All of these can result in continued activities contravening PA mandates, effectively obliterating its legal protection.628CAR TBPA Network Strategic Plan, supra note 370. Page 139 of 233 Copyright ©2010 by Elaine Hsiao
  • 140. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 629an Inter-governmental Committee to work on “topics of mutual interest and benefit.” Each park hasits own management plan, but these are developed with the aid of cross-border consultations. 630Supplementary to this are MOUs between the agencies providing for cooperation in designatedactivities.631 Although initially limited, the realm of cooperative activities can be expanded upon whenthe conditions are appropriate. This can serve as a middle step for protected areas with lesser capacityor resources to engage in more comprehensive integrated management regimes.Multi-stakeholder Collaborative Adaptive Management A peace park initiative is the embodiment of a shared belief that cross-boundary conservationcan effectively solve social issues, maintain healthy environments and build peace through its opendialogue and ecological restoration. Yet, it will not succeed without civic participation and change.Peace park stewards will struggle to meet the peace parks primary objectives absent communityconsensus and contribution, especially when their governments have few resources to sustain protectedarea management systems. Many post-colonial nations that modeled their national protected areassystems off of the United States national parks have discovered that creating populations of“conservation refugees” and using command-and-control top-down park management regimes have notbenefited nature conservation or the affected communities.632 Protected areas policies now use wordslike decentralization, community participation and collaborative management. When communityparticipation in peace park stewardship is orchestrated through decentralized systems of ecoregionalmanagement and supported by community capacity-building it can bring human activities that conflictwith environmental protectionism into conformity with peace park objectives. There are other benefits to including a wider spectrum of stakeholders in collaborative adaptivestewardship of peace parks. Developing the environmental stewardship capacity of a community canequip local actors to participate in international or regional programs, such as carbon sequestrationschemes and programs of payments for ecosystem services, that can provide an alternative revenuestream that helps improve the socio-economic status of the participating community. Inclusion ofstakeholders not traditionally perceived as conservation protagonists, such as the private sector andsecurity sector, can promote harmony between the actions of those actors and the peace parks primaryobjectives. As these non-traditional actors play larger roles in peace park protection, they will begin tosee the benefits of transboundary conservation, thus allowing the peace park concept to spread outside629Memorandum of Understanding between the National Park Service of the Department of the Interior of the United States of America and Parks Canada of the Department of Canadian Heritage of the Government of Canada, on Co- operation in management, Research, Protection, Conservation, and Presentation of National Parks and National Historic Sties, Can.-U.S., May 20, 1998, art. 3 (listing forms of co-operative activities and topics of mutual interest and benefit).630Glacier NP Management Plan, supra note 263.; Waterton NP Management Plan, supra note 263.631U.S. NPS & Parks Canada MOU, supra note 264, at art. 3 (listing forms of co-operative activities and topics of mutual interest and benefit).; Wendy Ross, supra note 270.632See Mark Dowie, supra note 161.; Telephone interview with Alvaro Ugalde, supra note 530 (in the 1980s, protected areas managers realized they couldnt protect natural environments without including the people). Page 140 of 233 Copyright ©2010 by Elaine Hsiao
  • 141. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010of the choir and into more elusive audiences.The IUCN WCPA has noted that the cooperationrequirement of a recognized TBPA may be satisfied with as little as one meeting a year to discussprotected area activities.633 However, in order for a peace park to maintain its tri-prong goals of holisticconservation, peaceful relations and cooperative management, it should incorporate a much fullerdegree of integration between stakeholders and protected area stewardship. Further clarification shouldbe awarded to the cooperation element when defining a transboundary peace park. The cooperativeelement of a peace park should tend towards much fuller cooperation. Full cooperation, according tothe IUCN WCPA, is characterized by:634 • Planning for the two PAs is fully integrated, and, if appropriate, ecosystem-based, with implied joint decision-making and common goals • Joint planning occurs, and, if the two share an ecosystem, this planning usually treats the two PAs as a whole • Joint management sometimes occurs, with co-operation on at least six activities • A joint committee exists for advising on transboundary co-operationA truly collaborative transboundary protected area should go require fully integrated PA planning andmanagement that recognizes the nature of the unitary ecoregion, with cooperation on a variety oftransboundary activities, mandated and implemented by a multistakeholder committee. In evolving management regimes for peace parks, States can create multi-stakeholder and inter-disciplinary task forces or committees to manage specified activities within the peace park (e.g., amulti-stakeholder committee made up of representatives from the relevant ministries or agencies,indigenous representatives, local community representatives, NGOs and INGOs, other experts, etc.).This promotes a much more participatory approach to peace park management and expands decision-making power to include stakeholders that may not typically have such direct access. A multi-stakeholder commission can be developed and expanded over time to grow its authorities andstakeholder base. It may start as a multi-stakeholder interdisciplinary council for consultationpurposes, but can evolve to become the multi-stakeholder interdisciplinary organ for peace parkgovernance. When creating a protected area with a focus on peace, it is preferable to promote suchbroad good-faith collaboration in the management and operation of the territory. Where indigenous peoples are present, their integration into peace park processes should bepromoted in such a way as to recognize most fully the indigenous rights captured in the UNDRIP. Thismeans that indigenous leaders should sit as equals with Heads of State or Government and agreementsin declaration of peace parks where there are indigenous lands or natural resources, should berecognized as international treaties subject to the rules established by the Vienna Convention. Inmountain forests, similar relationships should be cultivated between highland and lowland communities633Trevor Sandwith et al., supra note 19, at 34.634Id. Page 141 of 233 Copyright ©2010 by Elaine Hsiao
  • 142. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010so as to demarginalize communities that may feel disenfranchised or removed from political processesand the economic benefits of resource extraction and environmental degradation affecting their lands.Meaningful participation in a peace park process is a critical component of its ability to transformconflict to peace. Holistic ecosystem management cannot be a static program. Human activities can be a positiveor negative factor in the complex equation of ecological processes occurring simultaneously in anyecosystem and so our activities must be evaluated repeatedly and periodically. “Ecosystems constantlychange, our understanding of them constantly changes, and management goals are subject to change.Consequently, ecosystem management must be adaptive.”635 Management practices must be flexible toensure continued effectiveness and sustainability. Adaptive stewardship strengthens protected areasresilience to environmental changes and socio-political circumstances. Introducing patchwork peace parks A patchwork peace park is a model for establishing and managing transboundary peace parkspremised upon a collaborative community-based conservation paradigm. It envisions the creation ofcommunity conservation areas (CCAs), which are then woven together by cooperative agreementsbetween neighboring communities, for the the purpose of establishing a greater transboundary CCAnetwork – a patchwork peace park. Transboundary community-based conservation produces a local-level mechanism for resolving environmental conflict or responding to regional insecurities that mayaffect local conservation efforts. In the process of supporting regional conservation, it also strengthensthe communities themselves. It is based on the principle of subsidiarity and the full exercise ofuniversal human and environmental rights. Ultimately, a community-based transboundarycollaborative conservation process would improve the resilience of the communities, ecological andsociological, to environmental changes and conflict. It is well recognized that conservation requires peace. 636 Unfortunately, environmentalprotection even in protected areas is extremely difficult to achieve in times of conflict, despiteinternational humanitarian laws abrogating significant and long-term damage to the environment ornatural resources.637 PAs can find themselves manipulated as tools of warfare (e.g., ecocide committedper Janjiweed scorched earth policies) or abusively exploited in order to support or fund continuedviolence (e.g., conflict timber).638 Even worse, natural landscapes may find themselves void of any635John Douglas Peine, Ecosystem Management for Sustainability 8 (1999).636Rio Declaration, supra note 154, at prin. 24 (Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and co-operate in its further development, as necessary) & prin. 25 (Peace, development and environmental protection are interdependent and indivisible).637See Jay Austin & Carl E. Bruch, The Environmental Consequences of War (2000).638See Jamie Thomson & Ramzy Kanaan, United States Agency for International Development [USAID], Conflict Timber: Dimensions of the Problem in Asia and Africa (2004). Page 142 of 233 Copyright ©2010 by Elaine Hsiao
  • 143. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010kind of protection (de jure or de facto) in conflict situations and as conflict is born, escalates andcontinues, it may be increasingly difficult to engage in any environmental protection. Ultimately, peace park formulations can be as varied as the imagination allows and somesituations offer opportunity or require more creative practices. Times of conflict, political instability orinsecurity provide a calling for alternative methodologies to the more often seen State-driven top-downapproach to peace park processes. If the assumption is that peace parks benefit ecosystems, communitydevelopment and international relations, and all of these come under threat where there is poorgovernance or civil unrest, then it may be proposed that peace parks are all the more needed in times ofconflict. Peace park goals of conservation, sustainable development and non-violent dispute resolutionshould not be abandoned when times are tough. Additionally, the peoples who live in marginalizedborder communities should not be abandoned to suffer the detriments of conflict or poor governance.A peace park process must be promoted to provide relief for communities with few alternatives. Apatchwork peace park offers this possibility and it does so based on the principle of subsidiarity. A patchwork peace park would not necessarily bring an end to all violent conflict in borderregions. However, it could strengthen the capacity of border communities to steward shared naturalenvironments despite insecurity, barriers and multi-fronted challenges. With stronger community-based environmental governance systems, transboundary ecosystems and their communities are moreresilient to the insurgence of armed conflicts or any kind of negative environmental change, includinganthropogenically induced climate change. The next chapter on patchwork peace parks will present alegal framework for this community-based approach to establishing and managing peace parks. As acase study of its possible application, Chapter IV examines the patchwork peace park model applied inthe mountain forests of Honduras and Nicaragua, where regime change in Honduras has stymieddiplomatic relations between the two governments and a peace park process has paralyzed, leavingfrontier communities disenfranchised. “Political boundaries are the scars of history.” Page 143 of 233 Copyright ©2010 by Elaine Hsiao
  • 144. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 639 - William van Riet, Peace Parks Foundation CHAPTER IV Patchwork Peace Parks: A Community-Based Approach for Honduras and Nicaragua“Some day the people are going to want peace so much that their governments will have to get out ofthe way and let them have it.” − President Dwight D. EisenhowerA Sustainable Approach for Mountain Forest Communities Patchwork peace parks are an alternative paradigm to the more commonly implemented modelof top-down inter-State peace park creation. They allow communities to act of their own initiative andto participate directly in the governance of their own lands. In the previous chapter we exploreddifferent peace park modalities. One way that peace parks have often been declared is throughexclusion of local communities. People were removed from their traditional lands with little or noconsultation and then similarly left out of stewardship and benefit-sharing programs. Arguably, thiswas appropriate for the time. Alvaro Ugalde, sometimes known as the “Father of the Costa RicanNational park System,” has lamented that in Costa Rica when they started the protected areas system,there were already so many pressures for rampant development that if they had put protected areas upfor a vote, they probably would have lost.640 However, current concepts of sustainable development, aspromoted in Agenda 21, call for the “broadest public participation” by international, regional, sub-regional, non-governmental and all other organizations in a “dynamic program” of “developmental andenvironmental objectives.”641 This “new global partnership” will require harmonious co-existence ofhumans in Nature. A patchwork peace park is based upon this very premise. As a community-basedbottom-up approach, the patchwork peace park model is an alternative to the traditional top-down Stateimplemented peace park. A patchwork peace park is a network of Community Conservation Areas (CCAs). Byorganizing local community members to create CCAs, and then coordinating stewardship frameworksof neighboring CCAs, a model of transboundary community conservation (TBCC) can in similarfashion to the quilting bees of North America, be woven together. Quilting bees are a feminist traditionthat brought females of all generations together to share ideas, stories and life lessons as they workedtogether to sew quilts that would keep them warm for the winter. 642 The tradition of patchwork quiltsalso brought women together across continents; they would often send patterns, cloth and new ideasback and forth across the seas.643 In the making of a patchwork quilt, each person brings pieces of cloth639Chester, supra note 242, at np.640Telephone interview with Alvaro Ugalde, supra note 530.641U.N. GAOR, 46th Sess., Agenda Item 21, at 1.3, 1.4 & 1.6, UN Doc A/Conf.151/26 (1992).642Quilting 101.com, Patchwork Quilts (2005), http://www.quilting101.com/styles/patchwork-quilts.html.643Id. Page 144 of 233 Copyright ©2010 by Elaine Hsiao
  • 145. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010to the circle, typically scraps or patches of different size and color that cannot be used for much on theirown. Sharing in the work, everyone sews the pieces together into a beautifully patterned quilt orblanket. These quilts are then used to protect against cold winter nights. Like pieces of cloth,individual CCAs can be joined with neighboring CCAs to create a broader network. CCAs can even belinked across borders to create a transboundary biological corridor for peace. In this demonstration ofcollective action for the common good, the whole is greater than the sum of its parts. The patching together of a transboundary peace park is reminiscent of the Fable of Stone Soup.An old oral tradition, time and again told and retold, the Fable of Stone Soup is never the same waytwice. One version tells the story of three soldiers who wandered into a village during a time offamine.644 They set up a large cauldron over a fire in the center of the town square, filling it with waterand each placing a stone inside. Little by little, curious villagers were told that the soldiers weremaking stone soup. The soup, each soldier in turn noted, could use some salt, some pepper, an onion,or a carrot. In response, one villager would say that they could spare some salt, another villager,pepper, some would bring whatever they had, all contributing until they filled the cauldron with acornucopia of ingredients. That night the entire village enjoyed a delicious meal and from then on,having learned how to make soup from stones, were happier and more prosperous than ever. The Fableof Stone Soup, like a patchwork quilt or a patchwork peace park is based on the moral that we arebetter when we work together. One plus one equals three. In many ways, patchwork peace parks are an old tradition. Community-based conservation as aterm might be perceived as a relatively recent buzzword, it is not in its practical application a newconcept. What Eyal Benvenisti calls “the endogenous evolution of cooperation in small-scale commonpool resources,” has existed for as long as communities needed to coordinate activities to ensure theefficient use of communal resources.645 He provides as an example, one of the most primitive unifyingforces – the common pool resource known as water, and cites as the first documented story ofcooperation, the biblical story of Jacob removing a heavy stone used to collectively monitor and controlwater use and contamination646. Benvenisti also describes the collective action of farmers in the MiddleEast collaborating to dig irrigation tunnels or “qanawat” across distances sometimes spanning morethan fifty kilometers and highlights the importance of intra- and inter-community ties in supportingsuch extensive infrastructure development and management. 647 What unites “potentially rival villageshas been the shared religion,” or what can be understood as a common value. 648 What is known todayas “traditional knowledge,” is a communitys collective experience often pertaining to the sustainablecooperative management of local resources or the environment. Cooperation within and amongstcommunities, as well as conservation, are time tested human traditions. “Patchwork peace park,” is in644The Stone Soup Society, The Fable of Stone Soup (2010),a http://www.stonesoupsociety.com/Stone-Soup-Fable.htm.645Eyal Benvenisti, Sharing Transboundary Resources: International Law and Optimal Resource Use 3-7 (Cambridge University Press, 2002).646Id. at 3-4.647Id. at 4-6.648Id. at 7. Page 145 of 233 Copyright ©2010 by Elaine Hsiao
  • 146. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010some ways just a new name for doing what communities have long done, cooperate in the stewardshipof shared natural resources across a border. Patchwork peace parks are not merely fable or an anecdotal ideal to share, they are a practicablemodel that can be applied in any transboundary ecoregion of the world. Communities across anydivide can come together, enhancing land stewardship through collective action. In some cases, it maybe even be more appropriate than traditional State-driven peace park frameworks. For instance,patchwork peace parks may be particularly relevant in situations where conflict, poor governance, orpolitical instability render governments “unable or unwilling” to engage in transboundary peace parkprocesses. In an ideal world, multi-stakeholder cooperation across borders should provide a solidfoundation for successful TBCC, but border ecosystems in the real world are at times strife withinsecurity and violence; their protection unsupported by far-away governments wrought withinsecurities and exhibiting all the markings of poor governance. In these situations, a closer look mustbe given to how patchwork peace parks can be implemented and communities supported in theirendeavors to be the local stewards of the worlds threatened transboundary ecoregions.Challenges of centralized mountain forest governance Mountain forests are a local common pool resource that supports the livelihoods and well-beingof the communities that inhabit them and are a global common pool resource that provides ecosystemservices for all members of the international community. 649 Governance of a local and global commonpool resource like mountain forests must address many issues. The effects of climate change on thestewardship of mountain forest protected areas is an example of the multi-layered complexities thatpeoples might face. Focusing on the legal issues, it can be noted that legal frameworks governingmountain forest PAs will need to be strengthened in order to adequately confront climate change.Legislate changes will likely trigger political challenges. Nation-level governments may lack thecapacity, resources (human and financial), and infrastructure (physical and political) to undertake thenecessary legal adaptations. There may be lack of political will amongst elites and/or the greater publicto ensure the security of our protected areas in the face of climate change. Poor governance wouldaggravate all of these problems. Mountain forest common pool resources in these situations are notwell-suited for centralized governance. Climate change is perhaps the most global scale environmental change currently challengingour planet. Mountain forests are especially vulnerable to the impacts of climate change. 650 Drasticaltitudinal change is a defining characteristic of mountains.651 It explains the extremity of649Common Pool Resources are “natural or man-made resources in which (a) exclusion is nontrivial (but not necessarily impossible) and (b) yield is subtractable.” Michael McGinnis & Elinor Ostrom, Design Principles for Local and Global Commons 5 (1992).650See Derek Denniston, supra note 23, at 11.651Id. at 12.; David Smethurst, supra note 23, at 90. Page 146 of 233 Copyright ©2010 by Elaine Hsiao
  • 147. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010microclimates, biodiversity and ecosystems that can be found within a relatively short distance. 652Altitudinal zonation may also inhibit the ability of mountain forests to adapt to anthropogenicallyinduced climate change.653 The slightest changes in annual mean temperature can change a mountainforest into a desert.654 If the biological diversity loses its habitat, we may lose the biological diversity.This is a problem that will acutely affect the mountain forest dependent communities that inhabit theselocal and global commons. Mountain forest dependent peoples are by definition reliant upon thenatural resources and ecosystem services provided by the mountain forests they live in. 655 If the naturalresource base that they depend on is altered sufficiently, mountain forest dependent peoples will havefew options – adapt, migrate or perish. Laws protecting Nature and vulnerable communities need to accommodate for the uniquechallenges of climate change. Take, for example, the many protected areas established based on site-specific designations. These protected areas are declared for purposes of protecting explicitly specifiedconservation values, such as endangered species of flora or fauna, the ecological services of theterritory, or the rich cultural heritage of the area. If the raison detre of the protected area ceases toexist or is altered (e.g., if a species range shifts to a range outside of the protected area), justificationfor protecting the territory may be called into question. Additionally, if the site-specific conservationvalues are used as indicators for measuring environmental impacts, an environmental impactassessment may conclude that an environmentally destructive project has no significant impact on theprotected area because the conservation value no longer exists for an impact to be measured against it.In other words, if there are no longer any grizzly bears in Yellowstone National Park and environmentalimpacts are measured according to the effects of a project on grizzly bears, then all projects inYellowstone National Park will produce a Finding of No Significant Impact, regardless of their actualimpacts on the environment. If legal frameworks for environmental protection are not adequatelyadapted to confront climate change, the future of Nature on Earth, even in protected areas, does notbode well. Legislative changes in common law or civil law nations can be administratively challenging.Using the example above of site-specific protected area designations, administrative action would needto be taken in order to amend the site designation. Even the decision as to the appropriateadministrative action is more than meets the eye. The site designation could possibly be amended to652Id.653Derek Denniston, supra note 23, at 42-44 (the slightest changes in climate can be disastrous to the viability of many endemic mountain species that have evolved to exist in a very specific climate and locale).; Mountain forests may face “ecological squeeze,” whereby forest biota are pushed higher up the mountains, only to find that their forest habitat cannot exist above a certain altitude. Korner & Ohsawa et al., supra note 69, 684.654Id. at 43 (a 2°C increase in annual average temperature “would cause most of the [Tibetan Plateaus] current ecosystems to disappear and, in the central and northern sections, to be replaced with desert”).655In Chapter I on “Transboundary Mountain Forest Ecosystems and Mountain Forest Dependent Communities,” we define “mountain forest dependent peoples” as “those people who live in nor near mountain forests and who obtain most of their livelihood from the mountain forest.” Page 147 of 233 Copyright ©2010 by Elaine Hsiao
  • 148. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010designate new species that have moved in to the area, although this might trigger the question of whichare invasive species and which are species following natural shifts in their range habitats. Or it couldseek a more general approach, broadly recognizing the ecological import of the area, but this wouldmight make indicator-based environmental impact assessment difficult. Administrative decisionswould need to be based on the most current sound science and be open to public consultation, inaccordance with the procedures of domestic law. If environmental changes happen quickly enough,environmental ministries or agencies will find their already over-burdened resources stretched beyondcapacity as they try to maintain the relevance of their protected areas systems and to respond toconservation challenges imposed by climate change. Political challenges may also compound the legislative challenges of adapting environmentallegal frameworks to adequately respond to climate change. Simpler, more logistical difficulties, mayhinder the necessary administrative or congressional actions, such as lack of capacity or financial andhuman resources. Or, more complex institutional issues may exist; physical and politicalinfrastructures for environmental protection in the nation may already have been weak or non-existent.This may be indicative of resource deficiencies or perhaps even more invidious, the lack of politicalwill. The central government may be distracted by other priorities, good or bad. Alternatively, the lackof political will or mobility may be symptomatic of poor governance overall. Corruption may berampant and the swindling of public resources for other non-public uses may exhibit no transparency oraccountability; there may be little or no rule of law, in which case changes to the environmental lawwould be nearly meaningless; or the entire political regime itself might be unstable and possibly evendistracted by its efforts to maintain control of the nation through any and all means it deems necessary. In addition to domestic political difficulties, there may be many cross-border political hurdles toovercome as well. Differences in political ideologies may divide governments of nations to the pointof non-cooperation in the harmonization of legal frameworks and conservation activities in atransboundary protected area. Diplomatic relations may fail or cease entirely. At a worse extreme, thenations may go to war with each other. Armed conflicts in transboundary mountain forests are not anuncommon occurrence.656 Although there are international norms concerning the protection of Natureduring armed conflict, these are often disregarded.657 Thus far, little accountability has been enforced656Denniston, supra note 23, at 3.; Frederick Starr, supra note 134, at 173-176.657E.g. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques [hereinafter ENMOD], May 18, 1977, 31 U.S.T. 333.; E.g., United Nations Rome Statute of the International Criminal Court [hereinafter Rome Statute], July 17, 1998, U.N. Doc. No. A/Conf. 183/9, 37 I.L.M. 999, available at http://untreaty.un.org/cod/icc/statute/romefra.htm (last visited Oct. 28, 2008).; E.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, art. 35(3), June 8, 1977, 16 I.L.M. 1391, U.N. Doc. A/32/144 (1977), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/genevaconventions (last visited Oct. 29, 2008) [hereinafter Protocol I].; E.g., Protocol Additional to the Geneva Conventions of 12 August 1949, Convention on Certain Conventional Weapons, Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, June 8, 1977, 16 I.L.M. 1391, U.N. Doc. A/32/144 (1977), available at http://www.icrc.org/ihl.nsf/TOPICS?OpenView (last visited Nov. 2, 2008) [hereinafter Protocol III].; E.g., ICRC, Convention on the prohibition of military or any hostile use of environmental Page 148 of 233 Copyright ©2010 by Elaine Hsiao
  • 149. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010against such acts, thereby providing little disincentive for environmental war crimes. Needless to say,if relations between nations have deteriorated to this point, it is unlikely that the governments will sitdown and negotiate a peace park treaty and joint stewardship framework. All around the world, large-scale governance structures have been devised to manage commons.In an attempt to achieve economies of scale, modern States often centralize power based on “strongbureaucratic apparatus and sophisticated methods of governance to control people.” 658 Centralizedgovernance is sometimes characterized by the “losses and skewed decisions [that] emanate not fromignorance or poor judgment, but from the willful burdening of domestic groups by other groups whoabuse the inherent flaws that exist in the domestic political processes of states.” 659 The means by whichgovernments have sought to maintain control have involved strategic/manipulative power-skewing andeven coercion by force. Elitist vertical power structures often remove decision-making from the local-level and then rely on command-and-control top-down coercive measures to enforce them. This resultsin marginalization of minority groups and disrespects the human rights of individuals in the name ofutility. Stories, sometimes accompanied by a cell phone recorded YouTube video, depict pandemics ofpolice brutality and even military intervention targeted upon national civilians. Local communitiesmost affected by the decisions affecting their lands are lost in this bureaucratic machinery. The cons of centralized governance of commons, such as mountain forests, are not necessarilymitigated by international dynamics. Many ecoregions and natural resources find themselvesstraddling international frontiers. Globalization and mismanagement of natural resources havegenerated international dependencies on natural resources trapped wholly within one nations borders.660 The UN Charter of Economic Rights and Duties of States requires cooperation between States whenexploiting shared natural resources, but the tragic state of our oceans and waterways are testimony thatsomething is not working.661 Instead of engaging in full and equitable cooperation, States sometimes modification techniques, 10 December 1976 (2005), http://www.icrc.org/ihl.nsf/WebSign?ReadForm&id=460&ps=P (last visited Dec. 5, 2008).; See International Conference of the Red Cross [ICRC], Report of the Secretary-General on the Protection of the Environment in Time of Armed Conflict, delivered to the 48th session of the United Nations General Assembly [UNGA] Annex, U.N. Doc. A/49/323 (Nov. 17, 1993), available at http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section_ihl_environment?OpenDocument (last visited Nov. 2, 2008) [hereinafter ICRC Guidelines].; See Antoine Bouvier, ICRC, Protection of the Natural Environment in Time of Armed Conflict, 285 International Review of the Red Cross 567 (Dec. 31, 1991), available at http://www.icrc.org/web/eng/siteeng0.nsf/html/57JMAU (last visited Nov. 2, 2008).; See Karine Mollard-Bannelier, La protection de Lenvironnement en temps de conflit armé 25-30 (2001).; See Mark A. Drumbl, Waging War Against the World: The Need to Move from War Crimes to Environmental Crimes, 22 Fordham Intl L.J. 122, 131-132 (1998).; See Peter Sharp, Prospects for Environmental Liability in the International Criminal Court, 18 Va. Envtl. L.J. 217, 234 (1999).658Benvenisti, supra note 644, at 8-9.659Id. at 11.660Benvenisti, supra note 644, at 15.661Charter of Economic Rights and Duties of States, GA Res. 3281(xxix), UN GAOR, 29th Sess., Supp. No. 31 (1974) 50, available at http://www.un.org/documents/ga/res/39/a39r163.htm (last visited June 15, 2010). Page 149 of 233 Copyright ©2010 by Elaine Hsiao
  • 150. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010use shared natural resources (e.g., international riverways) as bargaining chips against each other. 662This type of political manipulation does not foster truly friendly relations between nations or a GlobalCare ethic. Centralized governance is not always the most efficient way of protecting transboundaryenvironments, like mountain forests. As discussed in the last chapter, mountain forests are a local and global common pool resource,663 which Garrett Hardin doomed to a fate of the “Tragedy of the Commons.” 664 What he failed toconsider is that at the local-level, individuals might have the capacity and “sufficient insight into theproblems that they faced to restructure their own rules and change the incentives they faced.” 665 In fact,more robust common pool resource institutions have been those based on Collective-ChoiceArrangements (affected individuals can take part in modifying operational rules) and MinimalRecognition of Rights to Organize (the “rights of participants to devise their own institutions are notchallenged by external governmental authorities”).666 Stewardship of mountain forests is more efficient when it arises from the local-level and then isaccordingly “scaled-up.”667 There seems to be recognition of this theory evinced by a global trendtowards local-level community-based forest stewardship; some estimates indicate that 200 millionhectares have been transferred to a community tenure regime in the last 20 years.” 668 A patchworkpeace park would build on community management of mountain forests and stretch these stewardshipframeworks across borders to creating larger, more holistic ecoregional or biological corridorconservation networks. A patchwork peace park also has the added benefit of explicitly mandating apeace objective, which many mountain forest communities can benefit from.Local collaboration for Environmental Peace, Social Peace and International Peace A patchwork peace park is an environmental governance paradigm founded on community-based conservation and collaboration for peace, that seeks to mitigate the challenges of mountain foreststewardship today, while building resilience to the challenges of tomorrow. Where centralized forestgovernance fails to meet the demands of environmental and social change, there must be support at theground level for a transboundary conservation initiative that can sustain Nature and its humancommunities. Such arrangements can be implemented by communities on alternate sides of aninternational border as they formally or informally organize themselves to locally manage sharednatural resources and ecosystems. More importantly, so long as this cross-border collaboration exists,662Benvenisti, supra note 644 at 18.663See Arun Agrawal, Forests, Governance, and Sustainability: Common Property Theory and its Contributions, 1 Intl Journal of the Commons 111, 111-136 (Oct. 2007).664Garrett Hardin, supra note 477, at 1244.).665McGinnis & Ostrom, supra note 648, at 6.666Id. at 9.667Id. at 10.668Agrawal, supra note 662, at 117. Page 150 of 233 Copyright ©2010 by Elaine Hsiao
  • 151. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010there will be de facto transboundary conservation whether or not there is recognition by the central orfederal authorities. Patchwork peace parks promote Environmental Peace, Social Peace and International Peace.Holistic conservation of transboundary ecoregions promotes the viability of the constituent ecology andecosystem services. By involving communities directly in transboundary conservation, a land ethic andstewardship framework will emerge and affect greater harmony between human communities and otherelements of Nature. This is Environmental Peace. Social Peace is that which exists intra- and inter-generationally amongst humans. Patchwork peace parks support the behavioral and institutionalchanges required for pacific dispute resolution, as well as social and environmental justice. It calls forcollective action and broad collaboration in issues of common interest and common concern, bringingtogether stakeholders that may not commonly interact. This type of integration across sectors ofsociety and cultures can foster Social Peace within and between communities at all levels, from local toregional, national to international. Social Peace must extend temporally beyond current generations toinclude future generations. Related to Social Peace is International Peace, the peace that existsbetween States or territorial jurisdictions. So long as the world is divided along State lines,International Peace will be needed to support conservation. Transboundary cooperation in the interestof stewardship of shared natural resources is a mechanism for environmental peacebuilding thatfacilitates positive relations between nations. With Environmental Peace, Social Peace andInternational Peace, our global community will find itself converging upon Pierre Allans Global Careand a true Culture of Peace.669 The United Nations has promoted the concept of a Culture of Peace that involvesEnvironmental Peace, Social Peace and International Peace. In its Declaration on a Culture of Peace, itdefines a Culture of Peace as “a set of values, attitudes, traditions and modes of behavior and ways oflife based on,” inter alia: • Respect for life, ending of violence and promotion and practice of non-violence through education, dialogue and cooperation, • Full respect for and promotion of all human rights and fundamental freedoms, • Commitment to peaceful settlement of conflicts, • Efforts to meet the developmental and environmental needs of present and future generations, • Adherence to the principles of freedom, justice, democracy, tolerance, solidarity, cooperation, pluralism, cultural diversity, dialogue and understanding at all levels of society and among nations...fostered by an enabling national and international environmental conducive to peace.670669Pierre Allan, supra note 509, at 119-128.670U.N. GAOR, 53rd Sess., art. 1, U.N. Doc. A/RES/53/243A (Sept. 13, 1999). Page 151 of 233 Copyright ©2010 by Elaine Hsiao
  • 152. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010In order to cultivate a Culture of Peace, the Israel/Palestine Center for Research and Informationrecognizes that it is “an on-going process, it is necessary to continue to challenge each other, bothlooking at the other sides society and looking inward at our own society...to deal with some of themore difficult questions involved in what it takes to create a culture of peace at a time when peace doesnot yet exist, when the streets are filled with violence, when the challenge of the conflict still exists,when we are still, perhaps not officially but in reality, enemies.”671 Peace requires change within an individual, within a community and across communities. Asstated in the Constitution of the United Nations Educational, Scientific, and Cultural Organization(UNESCO), “since wars begin in the minds of men, it is in the minds of men that the defences of peacemust be constructed.”672 UNESCO seeks this change through communication, cooperation and culturalexchange.673 The Earth Charter calls for a “sustainable global society founded on respect for nature,universal human rights, economic justice, and a culture of peace.” 674 It calls on “every individual,family, organization, and community” to play a role to build this sustainable global community. 675Patchworks peace parks do the same, beginning with individuals in just one community and thenreaching out to other communities interested in cultivating similar values and creating a network forconservation and peace. Geshe Kelsang Gyatso says that we must have Inner Peace before we canhave Outer Peace.676 A patchwork peace park functions in much the same way. A community mustfind the means for transcending intra-communal divisions to sustainably steward their lands. Then,they may look outwards, to seek cooperation with other communities. Thus, peace within a communitycan grow to embrace peace between communities.Patching communities through Transboundary Community Conservation Areas (TBCCAs) Large-scale conservation can be achieved by beginning small-scale. It can begin withindividuals interacting directly with members of their local community to change the policies andpatterns of their collective land ethic into something more sustainable – a CCA. The patchwork peacepark approach then envisions individual communities interacting directly to weave together theirseparate patches of CCAs across a shared border. Each CCA is a patch contributed by a community tothe greater network of CCAs, until together, they create a community-based collaborative stewardshipframework that quilts an entire landscape, biological corridor or ecoregion. This frameworkencourages implementation of the Subsidiarity Principle in TBCC. The movement is as organic aspossible, arising from the lowest level, bottom-up. In the advice of the World Wildlife Funds671Israel/Palestine Center for Research and Information, Creating a Culture of Peace 3 (Baskin & Al Qaq eds., Jan. 1999).672Constitution of the United Nations Educational, Scientific, and Cultural Organization, pmbl., Nov. 16, 1945, 4 U.N.T.S. 275.673Id. at art. 1(2).674Earth Charter, supra note 524, at pmbl.675Id. at 4.676Geshe Kelsang Gyatso, Transform Your Life: A Blissful Journey (Aug. 2007). Page 152 of 233 Copyright ©2010 by Elaine Hsiao
  • 153. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Biodiversity Support Program, when designing transboundary natural resource management programs: “it is best to work at the lowest transboundary level(s) possible. A bottom-up approach has the greatest chance of resulting in participation, buy-in and ownership of the process at the local level where the resources are managed. Involvement of higher levels can change over time, and as needed. It is important not to wait for all the enabling conditions to be in place before starting, but to take a pragmatic approach and start in areas where there are feasible opportunities, even if these are limited”.677Thus, in initiating a transboundary CCA network for peace, or a patchwork peace park, proponentsshould begin by working with the smallest unit possible – other individuals within their community. Intrying to protect the greater Continental Divide as part of a transcontinental watershed and chain ofmountain forests, people can begin with their own backyards and the community they live in. In creating a patchwork peace park, communities begin by organizing themselves to enactCCAs. CCAs can be defined as: “Natural and/or modified ecosystems containing significant biodiversity values, ecological services and cultural values, voluntarily conserved by Indigenous peoples and local communities, both sedentary and mobile, through customary laws or other effective means.”678This means that CCAs can be created de facto or de jure, by customary or codified law. CCAs can be(1) part of or all of an officially protected area (gazetted), (2) established voluntarily by communitieson their own lands through customary or legal procedures and then recognized by governmentagencies, (3) established voluntarily by communities on their own lands through customary or legalprocedures but not recognized by government agencies, (4) established by custom with no relationshipto government, (5) community areas with special stewardship rules managed under communityinstitutions, or (6) indigenous reserves and territories dedicated to their use and protection.679 The Indigenous and Community Conservation Areas Forum considers the followingcharacteristics to be fundamental to any CCA:677Harry van der Linde et al., Beyond Boundaries: Transboundary Natural Resource Management in Sub-Saharan Africa xix (Biodiversity Support Program 2001).678Indigenous and Community Conservation Areas Forum, Indigenous and Community Conservation Areas: A Bold New Frontier for Conservation (2009), http://www.iccaforum.org/.; See Ashish Kothari, Community Conserved Areas: Towards Ecological and Livelihood Security, 16 Parks 3, 3 (2006).; See IUCN, Community Conservation Areas in Central America: Recognising Them for Equity and Good Governance (2007), available at http://www.goodplanet.info/goodplanet/index.php/eng/Contenu/Points-de-vues/Aires-protegees-en-Amerique-centrale- de-la-necessite-de-les-reconnaitre-comme-un-modele-de-bonne-gouvernance-et-d-equite/%28theme%29/1518 (last visited June 15, 2010).679Gonzalo Oviedo, Community Conserved Areas in South America, 16 Parks 49, 50-51 (2006). Page 153 of 233 Copyright ©2010 by Elaine Hsiao
  • 154. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 • A community is closely connected to a well defined ecosystem (or to a species and its habitat) culturally and/or because of survival and dependence for livelihood; • The community management decisions and efforts lead to the conservation of the ecosystems habitats, species, ecological services and associated cultural values [even when the conscious objective of such management may be different than conservation per se, and be, for instance, related to material livelihood, water security, safeguarding of cultural and spiritual places, etc.]; • The community is the major player in decision-making (governance) and implementation regarding the management of the site, implying that community institutions have the capacity to enforce regulations; in many situations there may be other stakeholders in collaboration or partnership, but primary decision-making rests with the concerned community. 680CCAs can be established in terrestrial or marine habitat and can range vastly in size, from smallpatches less than a hectare to millions of hectares.681 They can be created for any one of manyconservation values and fit a spectrum of typologies. Some are these are listed below: • Indigenous territories managed for sustainable use, cultural values or conservation objectives; • Territories where mobile or nomadic communities have traditionally roamed, managing resources through customary regulations and practices; • Sacred sites; • Resource catchment areas from which communities derive livelihoods or ecosystem services and manage them for sustainable use; • Critical habitats of wildlife, protected for conservation of biological diversity; and • Landscape mosaics of natural and agricultural ecosystems containing considerable cultural and biological diversity value.682When CCAs are created with the express objectives of promoting conservation, cooperation and peace,they serve as the building blocks or patches to a patchwork peace park. Neighboring communities canlink CCAs together through formal or informal cooperation between communities. Geographicallydistant communities may similarly participate in CCA networks by creating parques hermanos (i.e.,“sister” or “brother” parks). By collaborating in the harmonization of CCA stewardship frameworks,local communities can improve conservation efforts across a wider territory, taking advantage of680Id.681Ashish Kothari, supra note 677, at 3.682Id. Page 154 of 233 Copyright ©2010 by Elaine Hsiao
  • 155. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010certain economies of scale, without giving up the direct collective action and collaborative decision-making processes that more centralized protected areas governance lose to bureaucracy. With official support from governments, communities can, in accordance with municipal and/ornational legislation, create formal CCAs (e.g., city parks or municipal protected areas). If amunicipality or local level official has the authority, they can establish a municipal or community PAalong a border with a neighboring community and then coordinate with other municipalities (or otherparallel authority structure) to do the same. The marine peace park between Israel and Jordan acrossthe River Jordan is an example of official cross-border local level collaboration. In January of 2007,mayors from both sides of the international river came together to sign an MOU declaring their intentto create a transboundary peace park.683 The MOU recognized “development of the peace park as acooperative effort and as a centerpiece of peace building activities between their neighboringcommunities.”684 CCAs have received increasing recognition and support internationally, especially withorganizations such as the IUCN and the Nature Conservancy helping to promote the model andsupporting local capacity-building efforts worldwide. Worldwide, there are some 400 to 800 millionhectares of forest owned or managed by communities.685 In countries like Mexico and Papua NewGuina, a resounding 80%-90% of all their forests are community forests.686 Some countries havemoved to recognize different forms of CCAs, such as extractive reserves in Brazil and Alaska NationalInterest Public Lands in the United States, conveying legal status to these territories to be managed bytraditional or indigenous peoples.687 Authorities can give strength to local level initiatives by addinglegitimacy to such projects when they affirm the existence of de facto transboundary conservationareas, but a CCA does not require this formality and nor do patchwork peace parks. Also, informalizing CCAs or transboundary CCA networks, it is important that the participation of higherlevels of government not “exert influence and control that is not in the best interests of local levels.” 688As Ashish Kothari notes, “We need to recognise that CCAs often are not just projects thatcommunities take up, but are very much a way of life, with a grounding in history and tradition, even ifmany may actually be quite recent.”689Case Study: a patchwork peace park between Honduras and Nicaragua683Memorandum of Understanding to Create the Al Bakoora/Naharayim/Gesher Peace Park, Muaz Bin Jabal Municipality, Jordan, Jordan Valley Regional Council, Israel & Beit Shean Valley Regional Council, Israel (Jan. 10, 2007).684Id.685Indigenous and Community Conservation Areas Forum, supra note 677.686Andy White & Alejandra Martin, Who Owns the Worlds Forests?: Forest Tenure and Public Forests in Transition 7 (2002).687See Indigenous and Community Conservation Areas Forum, (2009), http://www.iccaforum.org/ (the ICCA Database provides examples of ICCA case studies in different countries; “National Legislation and ICCAs” provides country- based reports on the status of national legislation, policy and implementation regarding ICCAs).688Harry van der Linde et al., supra note 676, at xx.689Ashish Kothari, supra note 677, at 10. Page 155 of 233 Copyright ©2010 by Elaine Hsiao
  • 156. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Collaborative conservation of mountain forests across borders ensures that the development ofconservation corridors in transboundary ecoregions does not further marginalize mountain forestcommunities. Large-scale conservation is needed to protect against the fragmentation of complexmountain forest ecosystems and the ecological squeeze of mountain biodiversity. It allows for morecooperative mountain watershed management, which is critical for human populations. This includeshuman populations that live in mountain forests and rely very directly upon mountain forests for theirlivelihoods, subsistence, development and culture. It also includes human populations who live in andaround mountain areas or their surrounding lowlands and who derive benefit from ecosystem servicesor natural resource extraction. The needs and wants of most of the world are satisfied to some degreeby the natural resources and ecosystem services derived from mountain forests. However, thesatisfaction of such needs and wants cannot be fulfilled at the harm of the hundreds of millions ofpolitically marginalized, poor who inhabit mountain forests. Mountain forests would benefit from decentralized governance spearheaded by their inhabitantlocal communities. As we know, mountain forest peoples suffer most directly the effects ofunsustainable mountain forest development. Centralized mountain legislation and policy-making canimpose systems of governance that are not well-suited for the unique complexities of mountain forestecoregions; thus, a decentralized approach is preferable.690 In a decentralized system based upon thesubsidiarity principle, the local communities of mountain forests become the direct stewards of theirenvironment. Such empowerment of historically marginalized communities is a positive transition to aparadigm of direct democracy. If we believe in the values of people and democracy, then a peace parkcan be crafted to provide for effective participation of local communities. Governance schemes caninvoke participation of local actors directly in the decision-making and management of theirsurrounding environments and natural resources. If mountain forests and their peoples are to besafeguarded from continued marginalization and disenfranchisement, mountain forest communitiesmust be empowered to voice their circumstances, interests and desires. Mountain forests and theirspecial circumstances could benefit from the patchwork peace park model put into practice by localpeoples themselves.Profile of the study area The proposed peace park between Honduras and Nicaragua will create a transboundarybiological corridor linking four protected areas, La Botija and Cerro Guanacaure in Honduras, as wellas Serranías Tepesomoto-La Pataste and Cañon de Somoto in Nicaragua. Together, these protectedareas and the greater biological corridor that they form cover just over 33,400 hectares of a singularborder-straddling ecoregion. It is essentially the southernmost limit of the Central American pine-oakforest ecoregion, which extends from southern Mexico all the way to northern Nicaragua. 691690Price & Messerli, supra note 76, at 16.691Alianza para la Conservación de los Bosques de Pino-Encino de Mesoamérica, Plan de Conservación de los Bosques de Page 156 of 233 Copyright ©2010 by Elaine Hsiao
  • 157. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Environmentally significant, this region has been largely ignored or abandoned by the social, economicand political powers that be, leaving its natural areas just as vulnerable as its human populations. The peace parks mountain forests and the watersheds are shared by ten different municipalitieswithin the departments of Choluteca (Honduras), Estelí and Madriz (both in Nicaragua). All of thecommunities in the proposed peace park and its surrounding lowlands depend on these mountainforests for ecosystem services. They also face similar environmental threats – forest fires, gorgojo pinebeetle plagues, illegal logging and drought. Recent water shortages, even in highland areas, emphasizethe common interest and common responsibility of the border communities in both Honduras andNicaragua to collaboratively protect their shared mountain forests. Popular recognition of the importance of these mountain forests and critical watersheds by localcommunity members, NGOs and government officials spurred momentum to declare a transboundarypeace park between Honduras and Nicaragua in 2007/2008. However, the peace park process has beenparalyzed by political tensions and obstacles mounting between the two governments. Casualcommentary might note that at this very time and in this very situation, a peace park between the twocountries would be all the more relevant and significant. Nevertheless, political statements and actionsby the two governments indicate that movement in the direction of bi-national (between two Stategovernments) declaration of a peace park will be long in the waiting. Despite the political differences that may exist between their governments, the communities onthe two sides of the border continue to feed a natural dynamic that directly links their families,Honduran and/or Nicaraguan. Also, despite the political differences that may exist between theirgovernments, the communities on both sides of the border continue to deal with growing environmentalchallenges, environmental degradation and environmental change. The lack of will and action at thenational level is a call to the local communities to undertake direct action in the conservation of theirlands and natural resources. My field research in the proposed peace park territory indicates that there already exists asystem of civil organization, largely supported by the legal frameworks of each nation, that canempower local communities to implement the patchwork peace park model in Honduras andNicaragua. This chapter will provide a broad history of the peace park movement and discuss myresearch findings from field trips into the territory, as well as next steps towards community-basedtransboundary collaborative conservation for peace and cooperation in the proposed territory a la thepatchwork peace park model.History and regional context The peoples of Honduras and Nicaragua share a long history of relative unity. As part of greaterCentral America, they were identifiable by a handful of what are now considered to be indigenouspeoples. In the border region of the proposed transboundary peace park between Honduras and Pino-Encino de Centroamérica y el Ave Migratoria Dendroica chrysoparia (E.S. Pérez, E. Secaira, C. Macías, S. Morales & I. Amezcua eds., Fundación Defensores de la Naturaleza & The Nature Conservancy 2008). Page 157 of 233 Copyright ©2010 by Elaine Hsiao
  • 158. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Nicaragua, the Chorotega (meaning inhabitants of Cholula) have historically ethnically dominated.Although there are few communities recognized officially as “indigenous” by their governments, manypeople on both sides of the border in the peace park territory still recognize their Chorotega ancestry.692 It was not until colonialism in the 1500s that Central America was divided into a number ofadministrative territories or until the 1800s that separate republics claimed independence and trumpeteddistinct national identities.693 What was once a united Central America is now composed of sevensovereign nation-states – Belize and the Republics of Costa Rica, El Salvador, Guatemala, Honduras,Nicaragua and Panama. Despite some rhetoric and regional agreements recognizing regional solidarityfor peace and development, divisive disagreements continue to wrack post-colonial Central America. Since their independence, bloody civil wars spilling across sometimes unclearly defined bordershas scarred a history of regional unity. Honduras and Nicaragua share a borderline that isapproximately 922 km long, almost three times the length of the border between Nicaragua and itsother neighboring country, Costa Rica.694 In fact, it is the largest stretch of frontier that either of thetwo countries shares with any other nation. Unfortunately, it has also been a gateway of conflictbetween two nations, who have shared a bitter history of war and discord. Only recently in 2007, wastheir century long maritime and territorial boundary dispute resolved by the International Court ofJustice, resulting in a set of disputed cay islands juridically distributed between the two nations.695 Although the territorial dispute is now behind them, fissures between Honduras and Nicaraguacontinue to separate the populations. In 2006, for the first time since the Sandanista-Contra War (1976-1990), Nicaragua elected Sandanista Daniel Ortega back into presidency. While Manuel Zelaya(“Mel”) was President of Honduras, relations and policies between the two governments were moreallied. However, with the election of Porfirio Lobo Sosa (“El Lobo”) in 2009 to the presidency inHonduras pursuant to the military ousting of “Mel,” diplomatic relations between the two governmentshave been stalled. President Ortega decried the military coup against Ex-President of Manuel Zelayaand refuses to recognize the new presidency of “El Lobo” in Honduras. The Government of Nicaragua692At the national level, there are no officially recognized indigenous communities within the proposed delineation of the transboundary peace park. However, at the municipal level, San Jose de Cusmapa and San Lucas (both in Nicaragua) are considered to be indigenous communities. This may be due to the fact that individuals who identify themselves as indigenous Chorotegas have come into positions of civic service within the municipalities. Their presence in public offices at the local level contributes to the quasi-official recognition of the indigenous communities in those municipalities. For example, in an interview with the mayor of San Jose de Cusmapa, the mayor explained that cutting trees on what are generally recognized to be indigenous lands in San Jose de Cusmapa, requires permissions by the municipality, as well as the indigenous community (administered by the Junta Directiva, or directorate, acting in accordance with the mandates or approvals of the Consejo de Ancianos, or Council of Ancients). In this way, the indigenous community directly participates in the decisions that affect their lands, although it is not required by national legislation or codified law.693Thomas L. Pearcy, The History of Central America (Greenwood Press, 2006).694 CIA.gov, Nicaragua, https://www.cia.gov/library/publications/the-world-factbook/geos/nu.html (last visited September 15, 2007).695Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), 2007 I.C.J. No. 120 (Oct. 8). Page 158 of 233 Copyright ©2010 by Elaine Hsiao
  • 159. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010has accepted that economic relations will continue, but is not ready to acknowledge diplomaticrelations with a government that it considers to be illegitimate.696The ecological, economic and social context As the Honduran and Nicaraguan peoples emerged from years of tragic civil and cross-borderguerrilla warfare, they found themselves characterized by poverty and corruption, yet rich culturallyand environmentally. Drawn together by their social circumstances and geographic proximity,communities have long interacted back and forth across the Honduran-Nicaraguan border, oftentimesunofficially. The ecological, economic and social conditions of this mountain forest region shared bythe peoples of Honduras and Nicaragua are prime for implementation of the patchwork peace parkmodel.Environmental situation in the proposed territory Nicaragua and Honduras are part of an extremely resource rich region of the world. More thanone-third of the terrestrial territory of Central America is covered in forests,697 and of this, about 43%(or 8.6 million hectares) of this is located in these two countries alone. 698 Central America is alsoknown as one of the biodiversity hotspots of the world, providing habitat for about 7% of the world’sbiodiversity.699 Approximately 8,500 different known species of plants and animals can be found inNicaragua700 and more than 6,600 in Honduras.701 This is an extremely broad representation of theglobe’s flora and fauna in a relatively small portion of the planet’s surface area. The mountain forests of the Choluteca and Madriz departments of Honduras and Nicaragua,respectively, mark the southern-most limit of the American pine-oak forests range (Pinus spp. andQuercus spp.), which is dominated by the Pinus oocarpa, a highly marketable wood.702 These pineforests provide habitat for multitudinous species of flora and fauna, including the internationally696On March 8th, 2010, Foreign Minister, Samuel Santos, reiterated that his Government does not recognize the Government of Porfirio Lobo in Honduras and that the Republic of Nicaragua will continue to uphold its declarations in the resolutions passed by the Organization of American States (OEA – Organizacion de Estados Americanos), the System of Central American Integration (SICA – Sistema de Integracion Centroamericana) and the Rio Group. However, Nicaragua maintains economic relations with Honduras. La Prensa, “No Reconoceremos a Gobierno Hondureño,” Reitera Santos, La Prensa (Mar. 8, 2010), http://www.laprensa.com.ni/2010/03/08/politica/18470; El Heraldo, Nicaragua Reconoce Necesidad de Integraci ón, El Heraldo (Mar. 26, 2010), http://www.elheraldo.hn/Pa %C3%ADs/Ediciones/2010/03/26/Noticias/Nicaragua-reconoce-necesidad-de-integracion.697Jorge Eduardo Rodríguez Quirós, IUCN, Centroamérica en el Límite Forestal: Desafios para la Implementación de las Políticas Forestales en el Istmo 9 (Gabriela Hernández ed., 2005).698 Id. at 12.699 Id. at 5.700 Earth Trends Country Profiles, Biodiversity and Protected Areas—Nicaragua (2003).701 Id.702Alianza para la Conservación de los Bosques de Pino-Encino de Mesoamérica, supra note 690, at 15-16. Page 159 of 233 Copyright ©2010 by Elaine Hsiao
  • 160. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010coveted Dendroica chrysopharia (the Golden-Cheeked Warbler), recently considered to be in danger ofextinction.703 A superficial glance over the territory reveals endless mountains, relatively cool moderatetemperatures and a diverse array of forests including: cloud forests, pine-oak mixed forests, tropical dryforests, subtropical moist forests, subtropical wet forests, tropical-moist transition forests, montane dryforests and montane-moist transition forests. 704 In each of these forest stands resides a significantnumber of endemic, endangered and threatened species of flora and fauna. 705 Any one of theseindividual species provides a biological justification for more unified management and conservation ofthe proposed territory. The map below presents some of the major ecosystems that can be found in thearea. Figure 3.6 Ecosystems in the Departments of Madriz and Esteli (Nicaragua) and Choluteca (Honduras)706 Two immeasurably important rivers, the Rio Coco and the Rio Negro, have origins in thisregion that provide water for hundreds of thousands of people living in the surrounding districts. TheRio Coco flows east to the Caribbean and the Rio Negro deposits west into the Gulf of Fonseca. In the703Id. at 15.704Jorge Figueroa, Jorge Bentin & Pablo Martínez de Anguita, Social Analysis: Field Scoping for the Viability of a Transboundary Protected Area Project Honduras (La Botija) and Nicaragua (Tepesomoto La Pataste) (2007), in La Conservación en las Fronteras: El Ciclo de Proyectos Aplicado a la Creación del Parque Binacional “Padre Fabretto” 55, 60 (Pablo Flores Velásquez, Pablo Martínez de Anguita & Elaine Hsiao eds., 2008).705Orlando J. Lagos Real, Importancia Biologica/Ecologica de la “Reserva Natural Tepesomoto – La Patasta” y el “Monumento Nacional Cañon de Somoto,” Dos Sistemas Naturales que Deben Ser la Base del Desarrollo Local de las Comunidades de su Entorno 3-10 (2007).706Céline Charlec, Silvia del Río Rodríguez & Pablo Martínez de Anguita, Estudio básico de Planificación Territorial para la creación de un Parque Binacional para la Paz en los departamentos de Choluteca (Honduras) y Madriz (Nicaragua), 64 anx.3 (2007). Page 160 of 233 Copyright ©2010 by Elaine Hsiao
  • 161. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 707past, the communities of Nicaragua and Honduras did not generally lack for water. Some places gotas much as 7,500 mm of precipitation annually. Given recent water shortages and continuallydiminishing supplies in the face of escalating social demand, local and State politicians have becomeincreasingly concerned about water issues. During one of my visits in 2007, Nicaragua was forced toimpose daily blackout periods across the nation because it was unable to provide enough hydroelectricenergy to meet human needs, a symptom of the first-ever water shortages in the nation. Stewardship ofthese key rivers and their tributaries will be an essential part of the political process in resolving watershortages.708 The Natural Reserve Serranías Tepesomoto – La Patasta was protected mainly for itsexceptional hydraulic value.709 With climate change, stewardship of this protected area will need to bestrengthened if it is to remain a provider of hydrological resources for generations to come. Below is agraphic representation of the major watersheds in the relevant region (please refer to map below). Figure 3.7 Watersheds in the Departments of Madriz and Esteli (Nicaragua) and Choluteca (Honduras)710 The condition of these mountain forests is deteriorating and under great pressure fromanthropogenic threats, including the effects of anthropogenically induced climate change.707Jorge Eduardo Rodríguez Quirós, supra note 696, at 9.708See Jordan Macknick, An Analysis of Water Management Structures in the Transboundary Mountainous Area between Nicaragua and Honduras, in La Conservación en las Fronteras: El Ciclo de Proyectos Aplicado a la Creación del Parque Binacional “Padre Fabretto” 189 (Pablo Flores Velásquez, Pablo Martínez de Anguita & Elaine Hsiao eds., 2007).709Orlando Lagos, supra note 704, at 1.710Charlec, Rodríguez & Martínez de Anguita, supra note 705, at 68 anx. 7. Page 161 of 233 Copyright ©2010 by Elaine Hsiao
  • 162. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Conservation and sustainable use of these resources has not always been a primary priority for CentralAmerican nations. Deforestation has become a significant force in this part of the world, taking nearly375,000 – 416,000 hectares of forest a year. 711 This issue is extremely prevalent in Honduras andNicaragua, where illegal logging leads to exploitation of forest resources that exceed legally authorizedquantities by more than 60%.712 Honduras is extremely dependent upon the use of wood, whichprovides somewhere between 65-70% of its energy. 713 Most of this wood is harvested from naturalforests or areas of vegetation in processes of recuperation. Other activities such as inappropriate land uses and augmentation of agriculture havecontributed greatly to these alarming levels of deforestation. 714 The Nature Conservancy has declaredthat the situation regarding forest resources in this particular area is extremely grave, with deforestationreaching critical levels due to the expansion of agriculture. 715 Near Cusmapa, in the Nicaraguan region,subsistence farmers have been infiltrating deeper into the mountainous pine forests, cutting trees asthey clear land for beans and corn. Despite legal protection of the protected areas (La Botija,Tepesomoto – La Patasta, and Cañon de Somoto), limits on the number of trees that can be cut down onprivate property and prohibition of tree-cutting within 15 km of the border (applicable on theNicaraguan side),716 the farmers have been clearing land further and further up the mountains. Most ofthe land in this territory is better suited for forest vegetation and not farming, so agricultural productionis inefficiently low. This further aggravates the cycle, forcing farmers to clear more land in order toproduce enough just for subsistence. These practices have only contributed to the fragmentation ofnatural habitats and deforestation in the region, affecting plant and animal resources alike. In turn, theloss and fragmentation of habitat has led to environmental degradation and greater levels of povertyand social vulnerability. If the mountain forest communities and lowland communities are to continueto depend upon the ecosystem services available in this region, the legal protections of theaforementioned protected areas must be strengthened and connectivity between them facilitated by theappropriate stewardship of buffer zones.Socio-economic situation in the proposed territory Despite the park’s rich array of flora and fauna, it is the stomping grounds of some of the mostimpoverished communities of both Nicaragua and Honduras. Honduras is the second lowest-incomenation in Central America, but still falls well above Nicaragua, whose Gross National Income (GNI) is711Jorge Eduardo Rodríguez Quirós, supra note 696, at 9.712Id. at 10.713Id. at 11.714Id. at 10.715The Nature Conservancy, Consultoria Dendroica Chrysoparia (2007).716Ley No. 585, 7 June 2006, Ley de Veda para el Corte Aprovechamiento [Ley de Veda] [Logging Prohibition] art. 1, La Gaceta [L.G.], 20 June 2006 (Nicar.). Page 162 of 233 Copyright ©2010 by Elaine Hsiao
  • 163. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 717second only to Haiti in Latin America and the Caribbean. Worldwide, Honduras and Nicaragua’stotal GDP in 2008 was below more than half of the countries ranked (Honduras was ranked 110 out of191, while Nicaragua ranked 135th).718 Their GNI, calculated based on the Atlas method, reflects anequally poor ranking. Honduras GNI index rates at 113th and Nicaragua at 138th of 210.719 Just overhalf of Honduras population (51%) lives below the poverty line, 720 and some 18.2% of employedpeople (not accounting for the large percentage of unemployed) live off of less than $1USD per day. 721In Nicaragua, the poorest one-fifth (20%) of the population shares in only 3.8% of the national wealth,722 and in both States nearly half of the population is unemployed or without meaningfulemployment.723 With human populations of nearly 8 million in Honduras and 6 million in Nicaragua,these are no small figures.724 Needless to say, the proposed patchwork peace park territory encompasses some of the poorercommunities in two of the lowest income countries in Latin America and the Caribbean. Internationalorganizations are a constant presence in towns such as Cusmapa (Nicaragua) and El Jocote (Honduras),which is exemplar of this type of living, providing clothing, food, and school supplies for families whocannot afford these “luxuries” on their own. The drive up the mountains to the Nicaraguan-Honduranborder from Somoto is littered with signs from different international or national non-profits workingon different projects, giving you a taste of the diverse aid representation in the area. It is questionablehow much the communities are actually benefiting from these endeavors. Ideally, these communitieswould be self-sufficient and prosperous of their own abilities. The effects of poverty are extremely prevalent in many of these communities and oftentimesthose who suffer the most are the younger generations. Inhabitants who survive off of subsistencefarming, find it difficult to pursue education beyond the secondary or even primary level. Even thechildren who do manage to make it to school and stay in school, may find that their teachers do not. Itis not uncommon for primary and secondary school teachers to fail to appear to their classes (eitherbecause they have no means of regular transportation to the school, they do not get paid enough to, orthey are paid relatively well regardless of whether or not they show up). Honduras and Nicaragua in general, have some of the highest child malnutrition rates (10% and17% respectively) in all of Latin America and the Caribbean; exceeded only by Guatemala. 725 In La717World Bank, World Development Indicators Database, Regional Fact Sheet from the World Development Indicators 2009: Latin America and the Caribbean (Apr. 20, 2009).718World Bank, World Development Indicators Database, Gross Domestic Product 2008 (Apr. 19, 2010).719World Bank, World Development Indicators Database, Gross National Income 2008, Atlas Method (Apr. 19, 2010).720Development Economics LDB Database, Honduras at a Glance (Dec. 9, 2009).721United Nations Statistics Division, Millenium Development Goals Indicators, http://mdgs.un.org/unsd/mdg/Data.aspx.722Id.723Only 56.3% of the population in Honduras is employed and 58.8% in Nicaragua. Id.724U.S. Central Intelligence Agency [US CIA], The World Factbook, available at https://www.cia.gov/library/publications/the-world-factbook/ (last visited July 16, 2010).725World Development Indicators Database, World Bank, Regional Fact Sheet from the World Development Indicators: Latin America and the Caribbean (2007). Page 163 of 233 Copyright ©2010 by Elaine Hsiao
  • 164. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010Botija, North American church aid groups have set up lunch programs at a few selected schools.Despite the benevolent intentions, this has caused a new problem. Students now walk hours more toattend schools with these meal programs, rather than attending the local school. This overburdens theresources of some schools and results in many children spending much of their day just traveling to andfrom classes, walking long distances alone. When teachers are unexcusedly absent, this can bedescribed as a particularly unjust situation for the education and futures of rural youth. Another important component of the transboundary peace park territory is the indigenousagricultural community that dominates the demographic. Subsistence farmers and indigenouscommunities (i.e. Cusmapa and San Lucas in Nicaragua) inhabit a significant portion of the privatelyowned property in the area, which comprises approximately 85% of the territory. 726 The indigenouscommunities of this region originate almost completely from the Chorotegas, who inhabited a largepart of the Central American isthmus. Many of these communities continue to identify with anindigenous Chorotega heritage, although little of the language and culture persists. In the north ofNicaragua there are five indigenous communities located in the Madriz and Nueva Segoviadepartments – Litelpaneca, Totogalpa, Mozonte, San Lucas and Cusmapa. Two of these, San Lucasand Cusmapa, are located in the proposed territory. Representatives of these communities areorganized more centrally in Mozonte and Cusmapa under the Pueblo Indigena de Cusmapa (IndigenousCommunity of Cusmapa). Various indigenous groups have banded together recently to reclaim their rights and to revivetheir cultural practices and traditions. Principle efforts of the Coordinadora Chorotega (a second levelorganization of five indigenous pueblos – Cusmapa, San Lucas, Litelpanecao, Mozonte and Totogalpa)and FEDICAMP (a federation of indigenous associations in Northern Nicaragua) have been focused onthe organization of indigenous groups, the reclamation of indigenous rights, the recognition of thesetowns as indigenous communities (similar to the indigenous communities of the Atlantic Coast),indigenous land/property rights, and the strengthening of the indigenous identity and culture in thisregion. These groups have just proposed a new law to the federal government, allowing these towns tobe officially recognized as indigenous communities. A vision and mission for the Indigenous Town of Cusmapa was developed through a census of16 different assemblies based on representatives (male, female and youth) from each location. Througha series of questions and responses, FEDICAMP was able to create a report of their conclusions. Thisreport reflected the general agreement amongst indigenous community members regarding priorityactivities that they wanted the Indigenous Community of Cusmapa (an organization much like theCoordinadora Chorotega) to partake in. Most noticeably, the meetings called for the reclamation of theindigenous culture, identity, rights and lands. However, there were many who wanted the indigenouscommunity to initiate environmental projects and to take action in protecting their natural environment. When the groups discussed natural resources in the territory, there was a strong call forconservation of natural resources. Many wanted the indigenous community to control deforestation, to726Interviews with Jairo Escalante, Fabretto Foundation (multiple occasions in 2007, 2008 and 2010). Page 164 of 233 Copyright ©2010 by Elaine Hsiao
  • 165. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010reforest degraded lands and to institute environmental education programs in the area. The assemblyleaders feel that the indigenous community must maintain strict control of their natural resources(similar to their land title sentiments). Where indigenous communities continue to control their land,they allow people to register for use and occupation of specified tracts. Most tenants use their land forsubsistence farming purposes only. Based on my own experiences in the territory and the compiled census of the differentassemblies, it is apparent that the indigenous community presents a significant stakeholder group andthe creation of a patchwork peace park in territory that overlaps theirs is extremely relevant to theirinterests. Although a peace park does not seem to directly contradict the objectives and activities of theindigenous groups, it is a project that cannot achieve success without integration and consideration forthese members of the region and their expressed concerns and opinions.Conflict potential as peace potential In the not so distant past this was a region of violent human conflict. Just a little more than twodecades ago, Contras and Sandinistas pushed into these mountainous pine forests, engaging in violentand savage warfare that took the lives of thousands, displacing human and animal populations alike,and scarring the trees and social systems in the area for awhile to come. A history of violent war anddisregard for the values of human life and nature is a stigma that remains in the minds and hearts ofmany Nicaraguans and Hondurans, particularly since so many lived through the recent civil wars.During the Civil War in Nicaragua, Sandinistas and Contras were engaged in violent battles that tookthe lives of many civilians and soldiers. With CIA training and funding, the Contras were partaking inatrocious acts of brutality and psychological warfare against the Sandinistas and the thousands ofcivilians unlucky enough to be living in the midst of this carnage. The Sandinista government was notnecessarily any more forgiving or compassionate in their war tactics, as they pushed into themountainous forests of the north of Nicaragua and south of Honduras, hunting down Contra guerillaunits. Unsurprisingly, the combatants’ indifference towards human life was only paralleled in itsattitudes towards the environment. To this day, bullet wounds scar the trees of the Choluteca/Madrizborderline territory – a reminder of the human and environmental destruction that ended only twodecades ago. Border conflicts in other parts of the international divide have brought the two countries head-to-head, but more peaceful policies have guided the State-leaders to the international courts (where thedispute is currently being resolved) rather than to arms. The conflict arose over the location of themaritime boundary that extends from the border of Cabo Gracias a Dios, with Honduras officiallyclaiming in 1982 that the line was demarcated by the 15 th parallel.727 Nicaragua adamantly disagreed,claiming that the boundary was northeast of that. In November of 1999, Honduras signed a treaty(Caribbean Sea Maritime Limits Treaty) with Columbia recognizing Columbia’s claims to large parts727 Eric Green, Honduras, Nicaragua to Discuss Dispute about Caribbean Sea Territories, USIS Washington File (1999), available at http://www.globalsecurity.org/military/library/news/1999/12/991220-border-usia1.htm. Page 165 of 233 Copyright ©2010 by Elaine Hsiao
  • 166. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010of the Caribbean, including the disputed territory, completely disregarding Nicaragua’s position in theunsettled matter. The following month, Nicaragua brought its case before the ICJ, which has justrecently been settled.728 The ICJs delineation of the maritine boundary and distribution of cay islandsbetween the two nations indicates that disputes between the two Governments can be resolved throughpeaceful judicial means. On a more localized scale, boundaries between private and common or indigenous lands havebeen a source of tension and conflict. Land tenure and rights are prevalent issues in this particularregion of both countries. Many inhabitants do not have proof of title to the land that they have beenliving on and improving for years and there are disagreements as to which lands are indigenous andwhich have been privatized by agrarian land reforms past. In Nicaragua in and around Cusmapa, thishas been a source of constant tension between the indigenous community and private landowners, suchas the Fabretto Foundation. On paper, the Fabretto Foundation has legitimately purchased title tocertain forest areas, but the indigenous community claims that those plots are still part of theircommunal territory. Many of these boundaries are difficult to distinguish today as landmarks havechanged and in the case of indigenous peoples, many occupants have inhabited the lands since beforetitle granting documents were ever needed. The numerous land reforms that have directly affectedproperty rights in this region are also subject to great dispute, leaving the drawing of exact bordersbetween neighbors a heated issue. It is not uncommon for an outsider to the area to be warned againstbringing up or looking too deep into land tenure and property rights issues in this border region. Furthermore, uncertain land tenure has led to inefficient uses and degradation of land. Somesubsistence farmers grow crops on lands with absentee owners; sometimes they do this with permissionfrom the richer landowners. Principle crops produced by these farmers include beans, corn and coffee.Wealthier residents raise cattle and experiment with other export crops, such as tomatoes. Chemicaland fertilizer use is poisoning the soils and waters; on more than one occasion I have seen discardedbottles inside or near the forest patches and hydrological units. The two historic town wells ofCusmapa are no longer drinkable. Forest clearing for grazing land has also been particularly invidious.Cattle are often allowed to roam free, eating tunnels into the cloud forest patches that can fairly bedescribed as shrinking islands of mountaintop biodiversity. Lacking supervision by absenteelandowners and without the possibility of acquiring legal title to these lands, subsistence farmers dolittle to regulate the environmental impacts of their livelihoods. Even in territories where land rights are clear there is significant deforestation and degradationoccurring. A frightening problem that is occurring on the Honduran side of the border (possibly also onthe Nicaraguan side) is the deforestation of private lands, facilitated by government corruption.Farmers often encounter heavily armed men on their own property clear-cutting sections of pine forestwith alleged government authorization. This issue was breached one night in June of 2007 in SanMarcos de Colon (Honduras), where a group of land owners had gathered in a church and passionatelypresented their encounters with this problem. Their feelings of helplessness and lack of support or728Territorial and Maritime Dispute between Nicaragua and Honduras in the Caribbean Sea (Nicar. v. Hond.), 2007 I.C.J. No. 120 (Oct. 8). Page 166 of 233 Copyright ©2010 by Elaine Hsiao
  • 167. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010assistance from the very government officials who are empowered by the people to protect the people,were clearly felt in their desperate plea for answers. Without a body to protect them and not quiteready to take up arms themselves against the invaders (not to mention the fact that they are few againstmany, who are much better equipped than them), the farmers hoped that this peace park would providea solution to their woes. This is just a sampling of the range of socio-ecological problems that have taken rootparticularly strongly in this mountainous pine forest region of the two countries. Despite the layers andcomplexities of many of these socio-political-ecological issues, non-violent conflict transformation isboth a possibility and a mandate for the peoples of Honduras and Nicaragua. A preference for peacefuldispute resolution in accord with international law is actually embodied in the Nicaraguan Constitution729 and must be a guiding principle in any cross-border dealings between the two nations. This includescivilly resolving the political differences that are currently blocking a peace park process between thetwo Governments. Other transboundary cooperative efforts are taking place in the western region to help protectthe natural and cultural resources through El Proyecto Corazón, the Heart of the MesoamericanBiological Corridor (MBC). El Proyecto Corazón is the unification of multiple PA’s along the easternborder of Nicaragua and Honduras: Reserva del Hombre, Río Plátano Biosphere, Biosphere ReserveTawahka – Asangni, Patuca National Park, and Bosawas Biosphere in the very center or heart of theMBC (hence its name). Although the President of Nicaragua has said that only economic relationsshall continue so long as “Lobo” is President of Honduras, it appears that transboundary conservationcontinues in El Proyecto Corazón. If transboundary conservation can work there, then there is noreason why the communities of Choluteca and Madriz should be prevented from coordinating thetransboundary stewardship of their shared natural environment.Project cycle to date Over sixty years ago a Salesian missionary, Rev. Rafael Maria Fabretto came to Nicaragua fromVenice, Italy.730 He spent some time in various parts of the region, but always loved the small town ofCusmapa in the high cool mountains of northern Nicaragua the most. It was there that Rev. RafaelMaria Fabretto would make his mark on the border communities of Nicaragua and where he wouldcome to be known as “Padre Fabretto.” Padre Fabretto is perhaps most famous for his compassion fororphaned children. In and around Cusmapa, he built a handful of small homes where abandoned,abused or orphaned children could come to live and learn. When the warfare of the 1980s tore apartfamilies, recruiting or forcing men and women to fight for the Sandinistas or the Contras, and childrenwere left without parent or home, Padre Fabretto took them in.729Constitución Política de la República de Nicaragua [Cn.] [Constitution] tit. I, ch. I, art. 5, La Gaceta [L.G.], 4 July 1995 (Nicar.).730Fabretto Childrens Foundation, Organization History (2010), http://www.fabretto.org/About%20Us%20- %20Organization%20History. Page 167 of 233 Copyright ©2010 by Elaine Hsiao
  • 168. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Today, many of those young orphaned children are young adults working for their communityand filled with idea(l)s. More than a few of these “Children of Fabretto” have pursued studies insustainable rural development or sustainable forestry and now help to organize organic shade-growncoffee cooperatives, model forests, a womens cooperative making pine-needle baskets (a non-timberforest product), organic gardens in the local schools, and environmental education programs for thenew “Children of Fabretto.” Their work was introduced to a young Ph.D. student at the time, PabloMartinez de Anguita from Spain, who had come to the region to design a system of payments forenvironmental services, a model he hoped to promote for purposes of sustainable rural development. Out of the question of what to do with Fabrettos standing forests and the problems of economicpoverty, illegal deforestation and the history of conflict that still haunts the nightmares of many localresidents, the idea to create a transboundary peace park was born. For some time, this idea would floatcasually through conversations, but it did not properly take hold until 2006 when an internationalsynergy developed. In that year, a group of local stakeholders (including Orlando Lagos and JairoEscalante, “Children of Fabretto”) along with scientists and scholars from different local and foreignuniversities, started the collaborative studies that would help to justify the creation of a newtransboundary peace park between Honduras and Nicaragua. This peace park postulates the joining of four PAs across an international border conjoining thetwo nations. It had selected as the physical locus upon which to attach ideals of community-basedconservation, sustainable development, cooperation and peace, a particularly natural resource rich partof the region that has experienced little large-scale development, but is well familiar with thedestructive activities of human beings. La Botija National Park and Protected Forest Area and Area ofWater Production El Cerro Guanacaste in Honduras, along with Serranías Tepesomoto-La PatastaReserve and the National Monument Cañón de Somoto, both situated in Nicaragua, are four veryproximately located PAs in the Choluteca and Madriz departments of Honduras and Nicaragua,respectively. The connection of these conservation units provides a natural corridor for biological andcultural diversity, that support their viability into the future. Some hope has been expressed that thispeace park will one day extend as far as the Gulf of Fonseca, but this is not currently being proposed.A comprehensive territorial study conducted by team researchers resulted in a proposed delineation ofthe peace park as it appears below: Page 168 of 233 Copyright ©2010 by Elaine Hsiao
  • 169. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 731 Figure 3.8 Delineation of the Proposed Transboundary Peace Park The second map (below) is a subset representing the marked territory in the first map (above).731Charlec, Rodríguez & Martinez de Anguita, supra note 705, at 155-156. Page 169 of 233 Copyright ©2010 by Elaine Hsiao
  • 170. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 The studies undertaken by a team of local stakeholders, scientists, academics and expertslocally and around the world have culminated in the production of a series of reports and papers thatconstitute the initial scoping analysis and subsequent pre-viability and viability reports for atransboundary peace park initiative.732 Conclusions have supported the feasability of a transboundarypeace park in the delineated area and the idea has grown its support locally, regionally andinternationally. In October of 2008, the 4th World Conservation Congress of the IUCN held inBarcelona, Spain, adopted Resolution 4.042 – Establishment of a Transboundary Peace Park betweenHonduras and Nicaragua by a vote of 302/407 (99 of the remaining votes were abstentions, 6 werenos). The resolution also agreed that this future protected area should be organized under a co-management framework that will strengthen the role of local communities in transboundaryconservation and sustainable development.733 Meanwhile, a draft convention, the “Convention on Cooperation for the Creation of aTransfrontier Peace Park for the Environmental Management of the Wanki Coco o Segovia Watershedbetween the Republic of Honduras and the Republic of Nicaragua,” had been initiated between thegovernments of the two nations.734 With the adoption of the IUCN Resolution 4.042, much of thelanguage in the resolution was co-opted and integrated into the draft convention and circulated. It isuncertain where this draft convention lays under the papers piled high on ministerial desks, but it seemsthere has been little movement since. This can be attributed to two major events. The first being thefinancial crisis of 2008 and the second being the military coup that ousted President “Mel” Zelaya outof office in Honduras, June of 2009. With the financial crisis, development and conservation aiddwindled and proposals for project support in the Honduran-Nicaraguan border region were finding itdifficult to obtain funding for cross-border programs on the ground. At the State level, the golpe deestado or military coup, led to a breakdown in relations between the governments of Honduras andNicaragua. The Presidency of Daniel Ortega in Nicaragua refuses to recognize the legitimacy of thepurportedly democratically elected Porfirio “Lobo” Sosa. With the severance of diplomatic relationsbetween the two States, the draft convention will likely remain wherever it had died. Using Trueba and Marcos project cycle methodology as introduced in Chapter III, I have732See Pablo Martínez de Anguita et al., La Conservación en las Fronteras: El Ciclo de Proyectos Aplicado a la Creación del Parque Binacional “Padre Fabretto” 55, 60 (Pablo Flores Velásquez, Pablo Martínez de Anguita & Elaine Hsiao eds., 2008).733IUCN, Establishment of a Transboundary Peace Park between Honduras and Nicaragua, World Conservation Congress 4th Sess. Res. No. 4.042 (2008), compiled in Resolutions and Recommendations: World Conservation Congress, Barcelona, 5–14 October 2008, at 47-48, available at http://www.iucn.org/congress_08/assembly/policy/ (last visited June 16, 2010).734Convenio de Cooperación para la Creación para el Manejo Ambiental de la Cuenca Wanki Coco o Segovia entre la Republica de Honduras y la Republica de Nicaragua, Hond.-Nicar., July 27, 2008, Rev. Oficina Tratados Cancilleria-27- 60-08 (draft on file with author). Page 170 of 233 Copyright ©2010 by Elaine Hsiao
  • 171. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 735elaborated upon the events mentioned above in greater detail. This general timeline of the peace parkinitiatives progress from inception as an idea to its current status follows below:736 Project Idea. Emergence of the idea for a binational peace park between Honduras and Nicaragua through conversations between an investigator working for the Fabretto Foundation in Nicaragua (local NGO on Nicaraguan side of the proposed territory) and local community members and organizations of both countries, many of whom were already involved in local conservation and sustainable rural development efforts (2006). The idea was presented to the Secretariat of Environment and Natural Resources (SERNA) in Honduras and to the Ministry of Environment and Natural Resources (MARENA) (January 2007). The first team of researchers discussed deeply the idea of a peace park with local stakeholders on both sides of the border (February 2007). Pre-feasibility or Pre-viability Study. Pre-viability studies were completed, including a stakeholder analysis and scoping of those who had been informed of the objective of the studies (May 2007). Conclusions from the pre-viability studies were presented to local stakeholders, SERNA in Honduras and MARENA in Nicaragua (June 2007). Feasibility or Viability Study. Viability studies conducted by various volunteer scholars and scientists included the delineation of the area, hydrologic studies, forestry and ecotourism analyses, legal studies, etc. (July 2007 – May 2008). Publication of a collection of the research is available at www.parqueparalapaz.org, constituting the pre- viability and viability studies (May 2008). A workshop was organized in Somoto, Nicaragua to present the studies completed and compiled in the book to local authorities and stakeholders (May 2008). Defined Project. A second workshop was organized in Somoto of local mayors, representatives of civil society, NGOs and indigenous Chorotegas, and environmental ministries, to further define the goals and objectives of a binational peace park (June 2008). This meeting resulted in the signing of an accord between all sixty participants to support the creation of a transboundary peace park and to encourage their governments to do so as well. This lead to the approval of Resolution 4.042 by the IUCN 4 th World Conservation Congress in Barcelona, Spain (October 2008). Another workshop was held in San Marcos de Colon, Honduras, where participants were divided by areas of expertise (environment, social development and economic development) and asked to identify735Figueroa, Bentin & Martínez de Anguita, supra note 703, at 62.736Pablo Martinez de Anguita & Elaine Hsiao, Study Case: The Creation of a Binational Peace Park between Honduras and Nicaragua, in Forests and Society – Responding to Global Drivers of Change (R. Alfaro, M. Kanninen, M. Lobovikov, G. Mery, B. Sawllow & J. Varjo eds., IUFRO-WFSE, forthcoming 2010). Page 171 of 233 Copyright ©2010 by Elaine Hsiao
  • 172. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 problems and their causes in the proposed territory, and then to propose alternative solutions (December 2008). During 2008-2009, both embassies of Honduras and Nicaragua worked on an official binational agreement supporting the conclusions approved at the stakeholder level in the workshops. The agreement finished by the Ministries was sent to the office of both presidents. Unfortunately, the current uncertain political situation in Honduras has paralyzed this process. Grant proposals for binational projects premised upon the assumption that an agreement would be signed between the two governments have failed to acquire funding, thus projects remain in the definition phase. The peace park project cycle as it stands, remains in the project definition phase and isincomplete (insofar as a project cycle is ever complete). A Defined Project is the “integration oftechnical, financial, socio-economic, environmental and legal documents guaranteeing that investmentin the project will have maximum returns. The quality and definition of the studies and proposalsshould be complete, forming the basis of a final proposal.” 737 A few proposals have been designed outof the stakeholder consultations organized in 2008, but these have not been successful. The peace parkinitiative has thus far, been unable to secure financing for project execution, operation or management. As mentioned previously, the lack of support for the projects proposed is due in part to thefinancial crisis that crippled the ability of many international organizations to fund the development ofnew projects, and also partly because the binational agreement that was circulated between thegovernments of Honduras and Nicaragua was never formally signed. The proposed projects werepremised upon legal officiation of a transboundary peace park at the State level and the assumption thatlegislative protection would exist for the territory. The proposals also did not identify the best (in termsof appropriateness) institutions or organizations as the project implementors. Although a stakeholderanalysis of the area was undertaken in 2007-2008, most the stakeholders identified during that processwere not designated or appointed as the principal implementors or managers of the projects proposed.738Instead, other organizations with less expertise in the communities and particularities of the territory, oreven in environmental conservation, were named as primary project proponents. 739 This may beanother explanation for why the project proposals were not selected for grant support.737Figueroa, Bentin & Martínez de Anguita, supra note 703.738Id.739Although this might be an opportunity for an organization doing good works in other areas of these countries and in related areas of development to expand their activities into this territory, it does not help to support the local institutions and organizations that already exist and have an interest in developing local and cross-border conservation programs. Considering the efficiencies and benefits of facilitating local development, it would be advisable to support local stakeholders first before seeking external intervention from organizations with a learning curve (i.e., still need to be briefed on the dynamics and particularities of the communities and issues involved). When local stakeholders have identified and designed their own projects, outside actors may be invited for the expertise that they can provide. The role of these outside experts should be to transfer knowledge to local community members so that they may duplicate and improve upon those methods within the peace park territory. Page 172 of 233 Copyright ©2010 by Elaine Hsiao
  • 173. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Although Marco and Truebas project cycle methodology considers evaluation of the project an“Ex-Post” activity, according to truly adaptive governance, evaluative analyses should be on-goingthroughout a project cycle.740 Consistent and continuous review of the strengths, weaknesses andimpacts of previous activities should inform future decisions so that project activities remain relevantand effective. Given the recent developments (or lack thereof) concerning the establishment of a peacepark in Honduras and Nicaragua, a collaborative evaluation should be undertaken so as to adapt theinitiatives processes to current circumstances. Adaptive response would strengthen the resilience ofthe peace park initiative and its objectives despite instabilities or changes that might arise, such aspolitical or financial insecurity and environmental change.741 In this evaluative process, the patchworkpeace park approach may be given serious consideration as a paradigm for recognizing sustainablecommunity land ethics and building upon local capacities to extend that land ethic beyond theircommunities and across political borders.Modalities for a patchwork peace park by the communities of Choluteca, Estelí and Madriz After years of engaging in a peace park process with great potential, it can be difficult to acceptthat political bickerings between governments might be sufficient to extinguish what can be seen as theperfect union between idealism and practicality. If practicality has to do with feasibility and actual use,while idealism is devoted more to philosophical theory and adherence to the values of ideas andimagination, then a peace park is all of the above. President Ortega may have turned his back oneverything but money driven exchanges with his neighboring counterpart, President Sosa, but themountain forest communities are not going anywhere. There now exists a perfect opportunity topromote a peace park paradigm that may ultimately be superior, albeit less conventional. This is achance for the communities of Choluteca, Estelí and Madriz to take environmental governance mattersinto their own hands and to take ownership of their own sustainable development. The idea of TBCC as a paradigm for a transboundary peace park is not new. The idea was oncesuggested in a discussion with Professor Tom Ankersen of the University of Florida one late afternoonin San Jose, Costa Rica. It was the summer of 2007, invierno (winter) or the rainy season in CostaRica, and the first legal study on frameworks for the establishment of a transboundary peace parkbetween Honduras and Nicaragua were being undertaken. While discussing this research with Prof.Ankersen, the question arose as to whether the municipal governments had the authority to create740Adaptive management is a cyclical process that requires constant review of activities past and experiences to date, so as to inform decision-making in determining future actions. See Robert M. Argent, Components of Adaptive Management, in Catherine Allan & George Henry Stankey, Adaptive Environmental Management: A Practitioners Guide 11, 13 (Allan & Stankey eds., 2009).741Resilience is “a measure of a systems persistence and its ability to absorb change and disturbance but still maintain the same relationships among population or state variables. A system can be highly unstable but very resilient.” Craig R. Allen, Lance H. Gunderson & C.S. Holling, Commentary on Part One Articles, in Foundations of Ecological Resilience (Allen, Gunderson & Holling eds., Island Press, 2009). Page 173 of 233 Copyright ©2010 by Elaine Hsiao
  • 174. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010municipal PAs and to cooperate across the border in this way. The union of ideas that this suggestionpresented between community conservation, direct and collective action, and conservation for peace inthe establishment of transboundary local PAs for peace and cooperation seemed particularly attractivefor the communities of Choluteca, Estelí and Madriz. Nevertheless, in previous analyses of this case study, the focus has remained on a State-drivenlegal framework for a peace park between Honduras and Nicaragua. A section on local levelcollaboration for de facto transboundary conservation was always included, but never highlighted andnever first. This top-down approach is typical of the mentality of an ordinary citizen in a highlycentralized republic, where it is not uncommon to ask the State to do all the work, failing to understandthat the State is supposed to be made up of all the people in the communities within its territory. Theharsh cutbacks in development and conservation aid that have left many environmental NGOs reelingand in retreat, combined with the political paralysis that exists between the two governments ofHonduras and Nicaragua, have incubated the perfect conditions for a TBCC approach to be revived andapplied. The question that arises is, are the communities ready for this and if so, what needs to bedone? Stimulated by these questions, research was conducted in the mountain forests of Honduras andNicaragua in February and March of 2010 with very specific goals in mind. First, it was important todetail the legal framework for forming transboundary community conservation areas (TBCCAs) forpeace and cooperation, or in other words, patchwork peace parks. Second, it would be useful to gaugea spectrum of stakeholder perspectives regarding the concept of a patchwork peace park and hear whatthey might say regarding how a patchwork peace park might be achieved. Third, if the idea were well-received it would be advantageous to identify some initial projects that could enhance cross-borderintegration between the communities based on programs and institutions already in place that wouldfoster the local initiative needed to create a patchwork peace park. The rest of this chapter is the resultof these three lines of inquiry during five months of research conducted in Central America.Research Methodology: Identifying critical concerns and a system for community organization This case study is based on field visits in Honduras and Nicaragua, as well as researchconducted in Costa Rica at the United Nations Mandated University for Peace and at Pace UniversitySchool of Law in the U.S. It builds on previous research conducted over the past three years (2006-2009) that has contributed to an understanding of the possible legal frameworks for declaration andcollaborative management of this transboundary protected area for peace and cooperation. 742 Previousresearch was based primarily on the more common approach towards peace park establishment –international cooperation between States (i.e., central governments). Meetings and interviews wereconducted mostly with ministries and international NGOs, focusing less on individual communitymembers. The possibility of transboundary conservation occurring at the local level and between742See Velasquez, Martinez de Anguita & Hsiao, supra note 735. Page 174 of 233 Copyright ©2010 by Elaine Hsiao
  • 175. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010municipalities was discussed briefly in my previous research, but not the principal focus. The purpose of this thesis, however, is to propose an alternative model of transboundarycollaborative conservation for peace – a bottom-up approach of community-based conservation acrossborders. Therefore, the selection of interviewees and the interview objectives were modified. Thistime, my interests were focused on learning the views of local actors and community members, localNGOs and local public officers (mayors and local representatives of the environmental ministries). Thegoal was to interview these actors in order to understand the legal framework and political dynamics ofcommunity-level social organization for the purposes of implementing a patchwork peace park modelof environmental stewardship in Honduras and Nicaragua. Interviews were also conducted with someof the international NGOs working in the area in order to understand their perspectives and learn fromthe experiences they have had in community-based collaborative conservation in the Central Americanregion. Field research for this thesis was conducted in the capitals (Managua, Nicaragua andTegucigalpa, Honduras) and in parts of the proposed peace park on both sides of the internationalboundary between Honduras and Nicaragua. Interviews were carried out mostly informally,unstructured and semi-structured.743 Meetings were arranged beforehand when possible, while otherswere conducted in the field as the opportunity arose. In some cases, community members becameaware of the researchers presence and the researcher was approached so that they might share theirviews and ideas. Given the variabilities in methods of communication with many local stakeholders, it was notalways easy to coordinate meetings in advance. Many local stakeholders can only be reached by housevisits or rural post (which delays communication and in some cases essentially makes it prohibitivelyexpensive for local actors to participate), and direct (i.e., face-to-face) communication tends to be themore common practice in the region. Attempts to arrange meetings by email or telephone oftenresulted in a request that plans be coordinated in person or received no response at all. Therefore, itwas not possible to perform all of the interviews systematically desirable. Nevertheless, field visitsprovide a basis for some preliminary conclusions that will hopefully be explored in greater depththrough future research, possibly to be undertaken in a much more structured and formal process. This field research was also supported and supplemented by library and Internet researchundertaken at Pace Law School in White Plains, New York (U.S.) and the United Nations MandatedUniversity for Peace in El Rodeo de Mora, San Jose (Costa Rica). Cumulatively, this research provides743Informal interviewing is typically characterized “by a total lack of structure or control,” and mostly involves a researcher taking notes of daily conversations. It is often used at the beginning of a researchers observations in the field a sit helps them to settle in and build rapport with interviewees. In an Unstructured Interview, all parties clearly understand that an interview is being conducted for purposes of extracting information, but there is little control over the persons responses - “The idea is to get people to open up and let them express themselves in their own terms, and at their own pace.” Semistructured interviews are based on an interview guide, a list of written questions and topics that need to be covered and in a particular order. H. Russell Bernard, Research Methods in Anthropology: Qualitative and Quantitative Approaches 210-215 (4th ed., AltaMira Press, 2004). Page 175 of 233 Copyright ©2010 by Elaine Hsiao
  • 176. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010the theoretical foundations for understanding transboundary protected areas for peace and cooperationin general, as well as the principles supporting a patchwork peace park model of collaborative andadaptive TBCC in Honduras and Nicaragua. Informal interviews were also conducted with experts atPace Law School, the U.N. Mandated University for Peace and other academic institutions (e.g., EarthUniversity, Yale School of Forestry and Environmental Sciences, Universidad Rey Juan Carlos,University of Costa Rica, etc.), as well as various multinational environmental NGOs (e.g., IUCN,Conservation International, The Nature Conservancy), involved in transboundary conservation and/orcommunity conservation. The author is extremely grateful to everyone who has shared their time andviews; their perspectives and experiences have been valuable in the refinement of this research and theideas it encompasses.Environmental Governance and Stewardship in Honduras and Nicaragua As mentioned previously, one of the primary goals of engaging in field research in Hondurasand Nicaragua is to identify a framework for collaborative TBCC in the mountain forests on thefrontier between Honduras and Nicaragua. This involves a union of codified legal frameworks forsocial organization and participation in the declaration and management of protected areas, with defacto customary practices of local communities living in this border region. A legal (codified andcustomary) framework for any peace park must be appropriately constructed for regional peculiarities.This is true even in Honduras and Nicaragua, where there are slight variations between legal andcultural approaches to civil organization. The sections that follow are an attempt to reconcile the legaland practical realities of the peace park territory within the patchwork peace park approach. Thissection will discuss separately the legal framework for community conservation in each of the twocountries, and then weave these together to propose a transfrontier framework for a patchwork peacepark by the communities of Choluteca, Estelí and Madriz.Collaborative community conservation in Honduras Community organization for the purposes of direct participation in environmental conservationand natural resources management in Honduras is recognized in its laws. Honduras is a democraticrepublic governed by a representative government, a government whose powers emanate from itspeoples.744 Although it is a representative democracy, every citizen has the constitutional right toparticipation in all sectors of governance.745 No citizen can be denied their right to participate in the744Cn. tit. I, ch. I, art. 4 (Hond.) (La forma de gobierno es republicana, democrática y representativa) (The form of government is republican, democratic and representative).; Cn. tit. I, ch. I, art. 2 (Hond.) (La Soberanía corresponde al Pueblo del cual emanan todos los Poderes del Estado que se ejercen por representación) (The sovereignty belongs to the people of which emanate all the powers of the State to be exercised through representation.).745Cn. tit. I, ch. I, art. 5 (Hond.) (El gobierno debe sustentarse en el principio de la democracia participativa del cual se deriva la integración nacional, que implica participación de todos los sectores políticos en la administración pública) Page 176 of 233 Copyright ©2010 by Elaine Hsiao
  • 177. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 746politics or governance of the nation. These are fundamental constitutional rights of any individualcitizen of the Republic of Honduras. Citizens of Honduras also enjoy a fundamental right to an environment adequate to protecthuman health.747 The framing of this environmental right is similar to the link made betweenenvironmental change and human security found in certain sectors of environmental securityscholarship.748 A state of environmental security, or adequate environment, is that which ensureshuman health and/or well-being. According to the Constitution of Honduras, it is the general duty ofall persons to participate in the protection of the health of people and communities. 749 Out of thisobligation to safeguard personal and community health and the right to an environment adequate toprotect such health, emanates the argument for environmental protection in Honduras. 750 Furthermore,when these rights and obligations are partnered with the right to participation in a democraticgovernment, it can be understood that all citizens of Honduras have a right to participate directly inenvironmental stewardship, including through active participation in environmental governance. A citizens right to participation in environmental governance and stewardship extends from theConstitution of Honduras to the nations General Law of the Environment and can be found in (The government must be based on the principle of participatory democracy from which the national integration is derived, which implies participation of all political sectors in the public service).746Cn. tit. II, ch. IV, art. 45 (Hond.) (Se declara punible todo acto por el cual se prohíba o limite la participación del ciudadano en la vida política del país) (It is declared punishable any act which prohibits or restricts the participation of citizens in the political life of the country).747Cn. tit. III, ch. VII, art. 145 (Hond.) (El Estado conservará el medio ambiente adecuado para proteger la salud de las personas) (The State will conserve the environment adequate to protect the health of people).748See Sanjeev Khagram & Saleem Ali, Environment and Security, 31 Annu. Rev. Environ. Resourc. 395 (2006).749Cn. tit. III, ch. VII, art. 145 (Hond.) (El deber de todos participar en la promoción y preservación de la salud personal y de la comunidad) (It is the duty of all to participate in the promotion and preservation of personal health and of the community ).750Decreto No. 104-93, 8 June 1993, Ley General del Ambiente [Ley del Ambiente] [Environmental Law] pmbl., La Gaceta [L.G.], 30 June 1993 (Hond)(Considerando: Que de acuerdo con la Constitución de la República, el Estado conservará el ambiente adecuado para proteger la salud de las personas, declarando de utilidad y necesidad pública la explotación Técnica y Racional de los recursos naturales de la nación; Considerando: Que la destrucción acelerada de los recursos naturales y la degradación del ambiente amenaza el futuro de la nación ocasionando problemas económicos y sociales que afectan la calidad de vida de la población, y que es deber del Estado propiciar un estilo de desarrollo que, a través de la utilización adecuada de los recursos naturales y del ambiente, promueva la satisfacción de las necesidades básicas de la población presente sin comprometer la posibilidad de que las generaciones futuras satisfagan sus propias necesidades) (CONSIDERING: That according with the National Constitution, the Government will conserve the adequate environment to project the peoples health, declaring of public utility the technical and rational exploitation of the nations natural resources; CONSIDERING: That the accelerated destruction of the natural resources and the environment degradation threatens the future of the nation causing economic and social problems that affect the population quality of life and that is duty of the Government to cause a type of development that through the adequate use of the natural resources and environment, promotes the satisfaction of the current population basic needs, without compromising the ones of the future generations). Page 177 of 233 Copyright ©2010 by Elaine Hsiao
  • 178. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 751subsequent environmental laws emanating from these organic laws. In Honduras, citizens have aright to participate in issues of public interest,752 which include all activities regarding the protection,restoration and sustainable use of the environment and its natural resources. 753 It also contemplatescitizen participation in environmental issues involving protected areas, conservation and managementof natural resources754 (including forest resources755 and water resources),756 as well as environmentalthreats, such as forest fires and plagues. 757 Citizen participation is a public interest, 758 that includes,inter alia, denouncement of environmental harms759 and petitions for environmental protection. 760Civic participation in the establishment and management of a transboundary peace park would also fallwithin this right.751See id., at pmbl. (Considerando: Que la participación comunitaria es imprescindible para lograr la protección, conservación y uso racional de la riqueza natural del país y del ambiente en general. Considerando: Que el pueblo hondureño, reclama con urgencia, la emission de una legislación apropiada para la gestión ambiental que permita la formación de una conciencia nacional y la participación de todos los ciudadanos en la búsqueda de soluciones de beneficio colectivo) (CONSIDERING: That communitarian participation is necessary to achieve the protection, conservation and rational use of the countrys natural richness in particular and the environmental richness in general. CONSIDERING: That the Honduran people, ask urgently, for appropriate environmental legislation for environmental management that allows the development of a national conscience and the participation of all the citizens in order to achieve solutions that benefit the whole population.); E.g., Acuerdo No. 109-93, 27 May 1993, Reglamento General de la Ley del Ambiente, tit. V, ch. I,sec. II, art. 88, L.G., 20 December 1993 (Hond.) (Los habitantes en sus respectivos municipios tienen…el derecho de participar directamente en todas las acciones de defensa y preservación del ambiente y del uso racional de los recursos naturales de su respectivo término municipal) (Inhabitants of their respective municipalities have...the right to participate directly in all actions of defense and preservation of the environment and the rational use of natural resources of their respective municipality).752See e.g., Decreto No. 3-2006, 27 Enero 2006, Ley de Participación Ciudadana [Ley de Participación Ciudadana] [Citizen Participation Law], art. 2, L.G., 1 Feb. 2006 (Hond.).753Decreto No. 104-93, 8 June 1993, Ley General del Ambiente [Ley General del Ambiente] [Environmental Law] tit. I, ch. I, art. 1, La Gaceta [L.G.], 30 June 1993 (Hond.) (La protección, conservación, restauración y manejo sostenible del ambiente y de los recursos naturals son de utilidad pública y de interés social. … El interés público y el bien común constituyen los fundamentos de toda acción en defensa del ambiente) (The protection, conservation, restoration and the sustainable management of the environment and natural resources are of public utility and social interest).754Cn. tit. VI, ch. I, art. 340 (Hond.) (Se declara de utilidad y necesidad pública, la explotación técnica y racional de los recursos naturales de la Nación) (It is declared of utility and public need, the technical exploitation and rational use of natural resources of the Nation).755Cn. tit. VI, ch. I, art. 340 (Hond.) (La reforestación del país y la conservación de bosques se declara de conveniencia nacional y de interés colectivo) (The reforestation of the country and the conservation of forests is declared of national convenience and collective interest).; See also Decreto 98-2007, 28 Dec. 2007, Ley Forestal , Áreas Protegidas y Vida Silvestre [Ley Forestal] [Forestry, Protected Areas and Wildlife Law], L.G. 26 Feb. 2008 (Hond.).756Decreto No. 104-93, 8 June 1993, Ley General del Ambiente [Ley General del Ambiente] [Environmental Law] tit. III, ch. III, art. 35, La Gaceta [L.G.], 30 June 1993 (Hond.) (Se declara de interés público la protección de la naturaleza, incluyendo la preservación de las bellezas escénicas y la conservación y manejo de la flora y fauna silvestre) (It is of public interest the nature’s protection, including the scenery protection and the conservation and management of the wild flora and fauna).757Decreto No. 104-93, 8 June 1993, Ley General del Ambiente [Ley General del Ambiente] [Environmental Law] tit. III, Page 178 of 233 Copyright ©2010 by Elaine Hsiao
  • 179. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 A citizens right to participate in the governance of environmental matters concerning theircommunities, territories and nation is accompanied by a corresponding duty to participate directly inenvironmental protection and sustainable use of natural resources. 761 In fact, in the regulations issuedpursuant to the General Law of the Environment, Article 88 speaks first of the duty and then of theright to participate directly in all activities related to the preservation, protection and sustainable use ofnatural resources or the environment.762 Under certain circumstances, such as forest fires or arson,public officers can even require local residents to provide any assistance or cooperation needed to fightthe fires or capture arsonists.763 The duty to assist in environmental stewardship corresponds inherentlyto an individuals right to a healthy environment. If as Lansing Pollocks Freedom Principle postulates,“the freedom of other agents is equally as valuable as my own freedom,” then we all enjoy an equalright to a healthy environment that should not be interfered with by the acts or omissions of others. 764 ch. II, sec. C, art. 47, La Gaceta [L.G.], 30 June 1993 (Hond.) (Se declara de interés público la protección de los bosques contra los incendios y las plagas forestales y las demás actividades nocivas que afecten el recurso forestal y el ambiente) (It is of public interest the forests protection against the fires and the plagues and all the other hazardous activities that might affect the forestry resource and the environment).758Acuerdo No. 109-93, 27 May 1993, Reglamento General de la Ley del Ambiente, tit. V, ch. I,sec. II, art. 89, L.G., 20 December 1993 (Hond.) (Se declara de interés público la participación de los habitantes de la República, individualmente o a través de organizaciones en la conservación del medio ambiente y de los recursos naturales).759 Decreto No. 104-93, Ley del Medio Ambiente, tit. V, ch. I, art. 80, L.G., 8 June 1993 (Hond.) (Cualquier persona podrá denunciar ante la autoridad competente la ejecución de obras o actividades contaminantes o degradantes a cuyo efecto deberá iniciarse un expediente para su comprobación y para la adopción de las medidas que corresponden).760For example, citizens can initiate petitions for the creation of new laws, which may include laws regarding specific types of environmental protection (e.g., management of electronic wastes) or laws declaring new protected areas. Cn. tit. III, ch. II, art. 80 (Hond.) (Toda persona o asociación de personas tiene el derecho de presentar peticiones a las autoridades ya sea por motivos de interés particular o general y de obtener pronta respuesta en el plazo legal) (Any person or persons association has the right to submit requests to the authorities either on the grounds of particular interest or general interest and to obtain a prompt response within the legal limit).761Decreto No. 104-93, 8 June 1993, Ley General del Ambiente [Ley General del Ambiente] [Environmental Law] tit. VII, art. 102, La Gaceta [L.G.], 30 June 1993 (Hond.) (Los habitantes de las comunidades locales deben participar directamente en las acciones de defensa y preservación del ambiente y del uso racional de los recursos naturales del país.) (The inhabitants of the local communities must directly participate in the actions of defense and preservation of the environment and the rational use of the natural resources of the country).762 Acuerdo No. 109-93, 27 May 1993, Reglamento General de la Ley del Ambiente, tit. V, ch. I,sec. II, art. 88, L.G., 20 December 1993 (Hond.) (Los habitantes en sus respectivos municipios tienen el deber y el derecho de participar directamente en todas las acciones de defensa y preservación del ambiente y del uso racional de los recursos naturales de su respectivo término municipal).763Decreto Número 85, 18 November 1971, Ley Forestal ch. VII, art. 42, L.G. 18 November 1971 (Hond.) (Para combatir los incendios forestales y para capturar a los culpables en fraganti delito de los mismos, los representantes de la Secretaría de Recursos Naturales y autoridades militares y de policía locales están autorizados para requerir la cooperación de todo ciudadano residente en las localidades vecinas del siniestro).764Lansing Pollock, The Freedom Principle, 86 Ethics 332 (1976).; Pollocks Freedom Principle is recognized in the Honduran Constitution; the rights of each person are limited by the rights of others. Cn. tit. III, ch. I, art. 62 (Hond.) (Los derechos de cada hombre están limitados por los derechos de los demás, por la seguridad de todos y por las justas exigencias del bienestar general y del desenvolvimiento democrático) (The rights of each man are limited by the rights Page 179 of 233 Copyright ©2010 by Elaine Hsiao
  • 180. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010In other words, we all have a duty to not act (or fail to act) in a manner that will harm anotherindividuals full enjoyment of the right to a healthy environment, or we all have a duty to maintain ahealthy environment. In summary, citizens of Honduras enjoy a right to a healthy environment and a right toparticipate in environmental governance. They also have a corresponding duty to participate inenvironmental stewardship on their lands or within their jurisdiction. If a transboundary peace park isan appropriate model for environmental conservation, then it follows that an individual has a right andpotentially a duty to participate in the establishment and management of a patchwork peace park. Thefollowing section is an assessment of how such community-based organization might happen inHonduras. For purposes of analysis, community-based organization is divided into Social Organizationand Political Organization. Social Organization refers to the groupings of individuals that might ariseunder Freedom of Association (this might include anything from a community committee, churchgroup, NGO and so on), whereas Political Organization refers to the placement of individuals inpositions of public service or government office (e.g., municipal administrators, ministers, etc.).Social Organization in Honduras There are a variety of mechanisms for social organization in Honduras that are based uponcommunity-level associations. The right to free association is recognized in the Honduran Constitution765 and reiterated in legislation such as the Law of Community Participation 766 and the Law ofMunicipalities.767 These laws codify the role of specific types of community social organization in thegovernance of the republic. Social organization can take place at the community level with familiesorganizing amongst themselves, or at the regional level, with communities forming cooperativenetworks. There are a variety of forms or forums of social organization that are already recognized inHonduras. At the micro-level (in neighborhoods or villages), individuals and families can form of others, by the security of all and by the just demands of the general welfare and the advancement of democracy).765Cn. tit. III, ch. II, art. 78 (Hond.) (Se garantizan las libertades de asociación y de reunión siempre que no sean contrarias al orden público y a las buenas costumbres) (Freedoms of association and assembly are always guaranteed, provided that they are not contrary to public order and morality).; Cn. tit. III, ch. II, art. 79 (Hond.) (Toda persona tiene derecho de reunirse con otras, pacíficamente y sin armas, en manifestación pública o en asamblea transitoria, en relación con sus intereses comunes de cualquier índole, sin necesidad de aviso o permiso especial) (Everyone has the right to meet with others, peacefully and unarmed, in public demonstration or transitory assembly, in connection with their common interests of any kind, without notice or special permit).766Decreto No. 3-2006, 27 Enero 2006, Ley de Participación Ciudadana [Citizen Participation Law], pmbl, L.G., 1 Feb. 2006 (Hond.) (El sistema de Gobierno es democrático y representativo mediante el cual se garantizan los derechos de asociación y de petición, como sustento de la participación ciudadana) (The system of Government is democratic and representative, by means of which the rights of association and petition are guaranteed as the sustenance of citizen participation).767Decreto 134-90, 29 Oct. 1990, Ley de Municipalidades [Law of Municipalities], L.G. 19 Nov. 1990 (Hond.). Page 180 of 233 Copyright ©2010 by Elaine Hsiao
  • 181. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 768patronatos. A patronato is “a natural structure of organization, connected by links of cohabitation ina specific community, made up of basic auxiliary units of public administration, the juridicalpersonality of which the State recognizes.”769 Each patronato is made up of a junta directiva ordirective unit (i.e., a secretariat, the administrative body in charge of implementing decisions), theasamblea or general assembly, the fiscalía or treasurer, and a presidente or president.770 Members ofthe junta directiva, fiscalía and its presidente are elected annually by the citizens of each community.771 Patronatos vary greatly from community to community. Some villages have well-organizedpatronatos that are supported by broad participation from members of the community. While others areconvened only when the occasion is deemed worthy and it may form a junta directiva solely foraddressing the matter at hand. The asamblea of a patronato can be convened for a variety of purposes,from project oriented meetings (e.g., to determine the location of a new town center) to regularcommunity-wide discussions. A patronato may have many junta directivas, each one with a differentmandate (e.g., health, water management, education, etc.) or just one with the general duty of seeingthrough the approved decisions of the asamblea. Villages with a practice of social organizationthrough patronatos tend to be well informed of who their presidente is and matters of concern to thejunta directiva. Less organized villages may be unfamiliar with their presidente and the junta directivamay essentially be non-functional. In addition to the formation of patronatos, citizens can form comites locales (local committees),consejos consultivos comunitario (community councils), cooperativas (cooperatives) and redes(networks). These organisms may be created out of common interest or shared benefit by any group oforganized individuals, for example watershed management or forestry advisory groups, local womenscooperatives and networks of organic farmers. In addition, there are other more institutionalizedforums for public consultation, such as the National Forum for Public Participation ad CommunityRoundtables for Public Participation.772. Individual members of a community may also advise their768Id. art. 62 (En cada municipio o barrio, colonia o aldea, los vecinos tendrán derecho a organizarse democráticamente en patronatos, para procurar el mejoramiento de las respectivas comunidades) (In every municipality or neighborhood, colony or village neighbors have the right to organize democratically in patronatos, to procure the improvement of their respective communities).769Id. (El patronato es una estructura natural de organización, vinculada por lazos de conveniencia en una comunidad determinada, constituidas como unidades básicas auxiliares de la administración pública, a la que el Estado le reconoce su personalidad jurídica) (The patronato is a natural structure of organization, connected by links of cohabitation in a specific community, made up of basic auxiliary units of public administration, the juridical personality of which the State recognizes).770Id. (Estructura organizativa: Asamblea, Junta Directiva y la Fiscalía) (Structural organization: assembly, directive unit and treasurer).771Id. (El patronato...será electa anualmente mediante voto directo y secreto de los ciudadanos y ciudadanas de su comunidad) (The patronato will be elected annually by direct and secret vote of the citizens of the community).772Ley de Participación Ciudadana, supra note 751, at art. 6 (Son instancias de la Participación Ciudadana: (1) El Foro Nacional de Participación Ciudadana; (2) Los Consejos de Desarrollo Municipal y Departamental; y, (3) Las Mesas Comunitarias de la Participación Ciudadana) (These are instances of Citizen Participation: (1) the National Forum of Citizen Participation; (2) the Councils of Municipal and Departmental Development; and, (3) the Communitarian Tables Page 181 of 233 Copyright ©2010 by Elaine Hsiao
  • 182. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010government by participating in a consejo de desarrollo municipal or municipal development council.773Other commonly recognized forms of community oriented social organizations include NGOs, socialentrepreneurships, etc. These civil society groups or social organizations have the right to participate in local andnational governance.774 According to the Law of Municipalities, it is also the duty of communitymembers to participate in the protection of biological and cultural resources. 775 They may do this as amember of a particular social organization or individually. In compliance with their civic duties and inexercise of their civic rights, an individual member of a community may participate in one of a numberof social organizations. A patchwork peace park could use these pre-existing mediums of social organization and buildupon their functionalities. Patronatos that are more well-organized could lead the way and then workwith neighboring groups to build similar capacities. Initially, the patronatos and other social groupscan work on specific projects of shared interest that require collaborated collective action, such aswatershed management. When the foundations of cooperative project development andimplementation are in place, they can expand the scope and breadth of joint activities towardsestablishment of TBCCA networks.Political Organization in Honduras In this chapter, political organization differs from social organization in that it refers to thehierarchy of official governance. Governance is “any method by which society is governed,” butofficial governance is more specifically the systematized formal mechanisms (institutions andprocesses) of bureaucratic and political nation-state administration. In other words, politicalorganization refers to the Government. The Government is made up of the “formal institutions of the[S]tate and their monopoly of legitimate coercive power,” which include “formal and institutional of the Citizen Participation).773Ley de Municipalidades, supra note 766, at art. 48 (Cada Municipalidad tendrá un Consejo de Desarrollo Municipal...nombrados por la Corporación Municipal de entre los representantes de las fuerzas vivas de la comunidad).774Ley de Participación Ciudadana, supra note 751, at art. 5(2) (iniciativas ciudadanas podrán ser planteadas no solamente por ciudadanos individualmente considerados, sino que también por asociaciones civiles, patronatos, empresas, gremios o cualquier otro grupo social organizado) (citizen initiatives can be proposed not only by individual citizens, but also by civil associations, patronages, businesses, unions or any other organized social group) & art. 24(6) (Los vecinos [defined by art. 23 as the people who habitually reside in the Municipality] de un Municipio tienen derechos y obligaciones. Son sus derechos los siguientes: 6) Participar en la gestión y desarrollo de los asuntos locales) (The neighbors [defined by art. 23 as the people who habitually reside in the Municipality] of a Municipality have rights and obligations. Their rights are the following: 6) Participate in the management and development of local matters).775Id. at art. 24(3) (Son sus obligaciones, las siguientes: 3) Participar en la salvaguarda de los bienes patrimoniales y valores cívicos, morales y culturales del Municipio y preservar el medio ambiente) (Their obligations are the following: 3) To participate in safeguard of the properties inherited from parents and civic values, cultural morals and of the Municipality and to preserve the environment). Page 182 of 233 Copyright ©2010 by Elaine Hsiao
  • 183. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010processes which operate at the level of the nation state to maintain public order and facilitate collectiveaction.”776 In Honduras, political organization, or the Government of Honduras, ranges from individualrepresentatives in each community to the Head of State. A municipality is “one population or association of resident people in a municipal term,governed by a municipality that exerts and extends its authority in its territory and is the basicterritorial structure of the State and immediate channel of citizen participation in public matters.” 777The municipality is essentially the lowest unit of official governance in Honduras, although eachmunicipality also has a representative (the alcalde auxiliario or alcaldito), appointed by the alcalde, ormayor, in each of the constituent communities. 778 Direct communication between the individualcommunities and the municipal government takes place at this level, between the alcalde auxiliario andtheir corresponding patronato. The alcalde auxiliario communicates their villages interests andconcerns to the alcalde and other municipal authorities. The alcalde is elected directly by the public,but the municipality may be geographically removed from a village or community, making the role ofthe alcalde auxiliario very important in maintaining an ear to the ground for local governments.779 One of the primary charges of a municipal government is protection of the environment. 780 Inexecuting its mandate to protect the environment, municipalities may enter into agreements with the776Gerry Stoker, Governance as Theory: Five Propositions 18 (1998).777Ley de Municipalidades, supra note 766, at art. 2 (El Municipio es una población o asociación de personas residentes en un término municipal, gobernada por una municipalidad que ejerce y extiende su autoridad en su territorio y es la estructura básica territorial del Estado y cauce inmediato de participación ciudadana en los asuntos públicos) (The Municipality is one population or association of resident people in a municipal term, governed by a municipality that exerts and extends its authority in its territory and is the basic territorial structure of the State and immediate channel of citizen participation in public matters).778Id. at art. 60 (Habrá Alcaldes Auxiliares en barrios, colonias y aldeas propuestos en cada una de ellas por la asamblea popular respectiva y serán acreditados por el Alcalde correspondiente) (There will be Mayors Aids in districts, colonies and villages, proposed by their respective popular assembly and confirmed by the corresponding Mayor).779Id. at art. 12 (1) (La autonomía municipal se basa en los postulados siguientes: 1.- La libre elección de sus autoridades mediante sufragio directo y secreto) (The municipal autonomy is based on the following postulates: 1. - The free election of its authorities by means of direct and secret suffrage).780Id. at art. 12(3) (La autonomía municipal se basa en los postulados siguientes: 3.- La facultad para recaudar sus propios recursos e invertirlos en beneficio del Municipio, con atención especial en la preservación del medio ambiente) (The municipal autonomy is based on the following postulates: 3. - The faculty to collect its own resources and to invest them to the benefit of the Municipality, with special attention in the preservation of the environment), art. 12(7) (Las municipalidades tienen las atribuciones siguientes: 7.-Protección de la ecología del medio ambiente y promoción de la reforestación) (The municipalities they have the following attributions: 7. - Protection of the ecology of the environment and promotion of the reforestation) & art. 14 (6) (La Municipalidad es el órgano de gobierno y administración del Municipio y existe para lograr el bienestar de los habitantes, promover su desarrollo integral y la preservación del medio ambiente...serán sus objetivos los siguientes: 6) Proteger el ecosistema municipal y el medio ambiente) (The Municipality is the administration and control system of the Municipal Government and it exists to obtain the well-being of its inhabitants, to promote its integral development and the preservation of the environment...its objectives will be the following: 6) Protect the municipal ecosystem and its environment) Page 183 of 233 Copyright ©2010 by Elaine Hsiao
  • 184. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 781Central Government or other units of decentralization. This could potentially involve othermunicipalities or social organizations that share competencies regarding the exploitation of resources orwho represent exploited areas and promote systems of reforestation and environmental protection.782Municipal governments also have the power to associate freely with other national or foreign entitiesfor improved completion of its conservation objections.783 In other words, in order to enhanceenvironmental protection of its municipal territory, a municipal government may formally collaboratewith other social and political organizations, domestic or international. This authority is extendedexplicitly to the governance of forest resources.784 Municipalities may also form associative groupings called mancomunidades.785 These aretypically composed of neighboring municipalities who may share an interest in collaboration forintegrated governance of certain matters concerning all of their territories. Mancomunidades arecreated by prerogative of the autonomy of individual municipalities. In Honduras, a mancomunidadthat covers all of the municipalities and communities of the peace park territory already exists. Thisalliance of municipalities is known as the Mancomunidad de Municipios del Cerro la Botija yGuanacaure (Mancomunidad of Municipalities for the Mountains of La Botija and Guanacaure,MAMBOCAURE). It was created specifically for the purposes of strengthening preservation of thePAs within their jurisdictions and to protect their primary water source, the mountainous watershed ofLa Botija and Guanacaure.786 Along with other border-adjacent municipalities, MAMBOCAURE localgovernments are also part of the Mancomunidad de Municipios Fronterizos (Mancommunity ofFrontier Municipalities). All of these are part of Open Frontiers, the Interregional Network forTransfrontier Latin American Cooperation and Integration.787781Id. at 12(11) (La autonomía municipal se basa en los postulados siguientes: 11.- Suscripción de convenios con el Gobierno Central y con otras entidades descentralizadas con las cuales concurra en la explotación de los recursos, en los que figuren las áreas de explotación, sistemas de reforestación, protección del medio ambiente) (The municipalities they have the following attributions: 11. - Subscription of agreements with the Central Government and other decentralized organizations which share competencies in the exploitation of resources, those which appear in the areas of exploitation, systems of reforestation, protection of the environment).782Id.783Id. at art. 20 (Los Municipios, con el voto afirmativo de los dos tercios de los miembros de la Corporación Municipal, podrán asociarse bajo cualquier forma entre sí o con otras entidades nacionales o extranjeras, para el mejor cumplimiento de sus objetivos y atribuciones) (Municipalities, with an affirmative vote of two-thirds of the members of the Municipal Corporation, will be able to be associated with each other under any form or with other national or foreign organizations, for the improved fulfillment of their objectives and attributions).784Id. at art. 69 (Las municipalidades deberán lograr el manejo sostenible, por sí, en Titulo de tradición de tierras forestales a favor de municipalidades asociación o por conducto de terceras personas, de los recursos forestales de su propiedad, de conformidad con su vocación y con el plan de manejo que apruebe la Administración Forestal del Estado) (The municipalities must sustainably manage forest lands per municipalities association or through third parties, of the forest resources of its property, in accordance with its vocation and with a management plan approved by the Forest Administration of the State).785See id. at art. 16-B.786Interview with Jorge Betancourt, Consultant, Secretaría de Recursos Naturales y Ambiente [SERNA] (Mar. 9, 2010).787Fronteras Abiertas, Red Interregional para la Cooperación Transfronteriza y la Integración Latinoamericana, Socios del Page 184 of 233 Copyright ©2010 by Elaine Hsiao
  • 185. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 Departamentos or departments, in contrast to mancomunidades are conglomerations ofmunicipalities as delineated by the State.788 Each Departamento is administered by a DepartmentalGovernor, who is appointed by the Head of State and essentially represents the presidency within thedepartment.789 In other words, the Governor of each department is an officer of the presidency, not ademocratically elected officer of its territorial constituents. The Departmental Governor will likely becharged with facilitating implementation of the new Vision of the Nation 2010-2038 (Visión de País)and Plan of the Nation 2010-2022 (Plan de Nación) in collaboration with the alcaldes within itsjurisdictional appointment. The Vision of the Nation is Honduras first attempt at trying to formulate a unified set ofprinciples, objectives and goals to guide the State in its development through 2038, regardless ofregime change or shifts from one political party to another.790 The first phase of implementation is thePlan of the Nation, to be executed between 2010 and 2022. 791 One of the four objectives, sustainableregional development, promotes social development and reduction of environmental vulnerabilities.792In attaining this and other objectives, guiding principles to be maintained are subsidiarity anddecentralization, public participation, and sustainable development in harmony with Nature. 793 ThePlan of the Nation envisions eleven strategic pathways to implementing these principles towardsachievement of the Vision of the Nations primary objectives. These include, inter alia: 1. Sustainable development 2. Democracy, citizenry and governability 3. Poverty reduction, generation of assets and equality of opportunities 4. Education and culture as mediums of social emancipation 5. Health as a foundation for the improvement of conditions for life 6. Security for development 7. Regional development, natural resources and environment Programa (2010), http://www.fronterasabiertas.org/index.php? option=com_content&task=blogcategory&id=37&Itemid=40.788Ley de Municipalidades, supra note 766, at art. 3 (El territorio hondureño se divide en departamentos y éstos en municipios autónomos) (The Honduran territory is divided in departments and those, into autonomous municipalities) & art. 4 (Los Departamentos son creados mediante ley, sus límites están fijados en la misma) (Departments are created by law, its limits are fixed by law).789Id. at art. 5 (El Gobernador Departamental será del libre nombramiento y remoción del Poder Ejecutivo) (The Departmental Governor will be freely appointed and removed by the Executive Power) & art. 6 (El Gobernador Departamental es el representante del Poder Ejecutivo en su jurisdicción) (The Departmental Governor is the representative of the Executive Power in its jurisdiction).790See Soberano Congreso Nacional, República de Honduras Visión de País 2010 – 2038 y Plan de Nación 2010‐2022 (Jan. 2010), available at www.visiondepais2010-2038.com (last visited June 19, 2010).791Id. at 11.792Id. at 24-26.793Id. at 17-21. Page 185 of 233 Copyright ©2010 by Elaine Hsiao
  • 186. Elaine Hsiao Professor Nicholas RobinsonLL.M. Thesis 17 July 2010 8. Climate change mitigation and adaptation794Underlying the Vision of the Nation and the Plan of the Nation is the desire that the citizenry ofHonduras itself will roll up their sleeves and participate in the advancement of their nation towards abetter future based on sustainable development and security. In this sense, the Vision of the Nation andits Plan of the Nation accord well with those of a patchwork peace park. Municipalities situated inborder territories can their civic duties under these national strategies by forming networks of CCAs forpeace and cooperation.Collaborative community conservation in Nicaragua Nicaragua and Honduras share a similar legal framework; these similarities extend equally toinclude the bases for collaborative conservation at the community-level. In Nicaragua, the codifiedlegal framework for direct participation in environmental stewardship originates from its nationalconstitution. Nicaragua is a democratic republic, governed by a representative and participatorygovernment operating under constitutional authorities emanating from its peoples. 795 All persons havea right to partake freely in the decisions and formation of social, economic and political systems of thenation.796 Such participation in public matters and State governance can occur via dedication to publicoffice or through civil action, including through petitions requesting particular government action. 797Public participation is a fundamental constitutional right and international right recognized by theGovernment of Nicaragua in its treaties ratified. 798 It is essential to participatory governance of the794Id. at 30.795Constitución Política de la República de Nicaragua, supra note 728, at tít. II, ch. I, art. 7, La Gaceta [L.G.], 30 April 1987, as amended by Ley No. 192, Ley de Reforma Parcial a la Constitución Política de la República de Nicaragua, 1 February 1995, L.G. 4 July 1995 (Nicar.) (Nicaragua es una República democrática, participativa y representativa).796Id. at art. 2 (La soberanía nacional reside en el pueblo y la ejerce a través de instrumentos democráticos, decidiendo y participando libremente en la construcción y perfeccionamiento del sistema económico, político y social de la nación) (The national sovereignty resides in the People and is exercised through democratic instruments, deciding and freely participating in the construction and improvement of the economic, political and social system of the nation).797Id. at art. 50 (Los ciudadanos tienen derecho de participar en igualdad de condiciones en los asuntos públicos y en la gestión estatal. Por medio de la ley se garantizará, nacional y localmente, la participación efectiva del pueblo) (The citizens have the right to participate in equality of conditions, in public matters and State management. By law, they will be guaranteed, national and locally, effective public participation).; Citizens have the right to elect or be elected to public positions. Id. at art. 51 (Los ciudadanos tienen derecho a elegir y ser elegidos en elecciones periódicas y optar a cargos públicos) (Citizens have the right to elect or be elected in period elections and to choose public positions).; Citizens may also petition their Government individually or collectively Id. at art. 2 (Toda persona podrá tener participación ciudadana para promover el inicio de acciones administrativas, civiles o penales) (Every person can engage in citizen participation to promote the initiation of administrative actions, civil or penal) & art. 52 (Los ciudadanos tienen derecho de hacer peticiones, denunciar anomalías y hacer críticas constructivas, en forma individual o colectiva, a los poderes del Estado o cualquier autoridad) (Citizens have a right to petition, to denounce anoma